Duncan v. Duncan, 17042

• Decision Date: 04 May 1967
• Docket Number: 17043.,No. 17042,17042
• Parties: Mrs. T. H. DUNCAN (C. W. Duncan, Administrator of the Estate of Mrs. T. H. Duncan, Deceased), Plaintiff-Appellee, v. W. Ray DUNCAN, Defendant-Appellant. Mrs. John FAIN, Plaintiff-Appellee, v. W. Ray DUNCAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

377 F.2d 49 (1967)

Mrs. T. H. DUNCAN (C. W. Duncan, Administrator of the Estate of Mrs. T. H. Duncan, Deceased), Plaintiff-Appellee, v. W. Ray DUNCAN, Defendant-Appellant.

Mrs. John FAIN, Plaintiff-Appellee, v. W. Ray DUNCAN, Defendant-Appellant.

Nos. 17042, 17043.

United States Court of Appeals Sixth Circuit.

May 4, 1967.

Wirt Courtney, Nashville, Tenn. (Good-pasture, Carpenter, Woods & Courtney, Nashville, Tenn., on the brief), for appellant.

Philip M. Carden, Nashville, Tenn. (Jack Norman, Seth Norman, Herbert R. Rich, Nashville, Tenn., on the brief), for appellees.

Before O'SULLIVAN, PECK, and McCREE, Circuit Judges.

PECK, Circuit Judge.

These consolidated cases arose out of a single-car accident in Lawrence County, Tennessee. The plaintiffs, defendant's mother and mother-in-law, were passengers in defendant's car when it struck a bridge abutment. Personal injury actions were commenced in a Tennessee state court and were subsequently removed to the United States District Court for the Middle District of Tennessee.

The cases were tried to a jury and a verdict finding defendant not guilty of negligence was returned. Upon plaintiffs' motion, the District Court set aside the verdicts and granted a new trial. Defendant's appeal from the order granting a new trial was dismissed by this court in 1964 for want of a final judgment, and after a second trial in which the jury returned verdicts in favor of the plaintiffs, defendant again appeals.

Several points have been raised on appeal, the principal one of which relates to the granting of the new trial. Appellant contends that the district judge acted under a mistake of law, in that he considered the case as a thirteenth juror under the inapplicable Tennessee practice. Appellant further claims that the district judge exceeded, or abused, his discretion in granting the new trial to the extent that he applied an improper legal standard. In support of this contention, appellant apparently relies on statements made by the district judge when ruling on the motion for a new trial.

A brief summary of the facts as developed at the first trial would here be appropriate. Plaintiffs, both residents of Hohenwald, Tennessee, had finished a week-long visit with defendant and his wife in Alabama, and were returning home with defendant and his wife in defendant's car when the accident in question occurred. At approximately 11:00 a. m. on April 26, 1960, and approximately 180 miles from defendant's home, the car in which the four persons were riding went out of control and skidded into a bridge abutment on the left-hand side of the road. Although the case was presented to the jury on the theory of defendant's negligence, there is no evidence explaining why the vehicle went out of control. The only eyewitnesses to the accident were the passengers in the car, and one of these passengers, Mrs. T. H. Duncan (a plaintiff) died prior to the first trial from causes unrelated to the accident.

The first witness to testify at trial was Mrs. Fain, a plaintiff, who at the time of trial was 91 years old. Mrs. Fain testified that she was sitting on the back seat of the car; that defendant was driving the automobile at the time of the accident and that in going through Lawrenceburg on the way to Hohenwald, the former town being about eight miles from the scene of the accident, it was raining some. Her version of how the accident happened was that "As we was — As Ray drove upon the bridge, why, the crash come." Again on cross-examination, the question was asked: "I believe you said — if I did not misunderstand you — when questioned by your attorney that the accident happened just in a flash, that the first thing you knew, it happened and hit the bridge, and that is all you know about the accident?" This witness replied, "That's all I know."

On direct examination, Mrs. Fain stated that the speed of the automobile was "maybe sixty, sixty-five, or something like that." However, this plaintiff also conceded that her husband had never owned a car, that she had never driven one, and that she had no idea how to estimate the speed of an automobile. Finally, this plaintiff admitted that she didn't remember complaining to defendant about the manner or method in which he was operating the car, and when asked if she heard anyone else comment on that subject, she shook her head negatively.

The next witness was defendant's wife, Mrs. Lucille Duncan. Mrs. Duncan testified that defendant was driving when they started the trip, and drove from Tuscaloosa, Alabama, to Florence, Alabama; that she drove from Florence to Lawrenceburg, Tennessee; and that defendant drove from Lawrenceburg until the time of the crash. She further stated that near Lawrenceburg, she had asked defendant if he would drive because it had begun to rain, and she didn't like to drive in the rain. According to Mrs. Duncan, the extent of the rain was "just showers." When asked how the accident happened, this witness testified "Well, I remember — I think I was looking down in the car because I don't remember seeing the bridge, but I remember seeing my husband raise his foot from the accelerator and then the car began to slide." With respect to the speed of the car prior to the accident, Mrs. Duncan stated that "We had been driving about 60 to 65 all the way, and defendant hadn't slowed up very much."

On cross-examination, Lucille Duncan was asked whether she had, on the day of the accident, told one Claude Miles (the first arrival on the scene), the patrolman who responded to the scene, and the ambulance driver that she and not defendant had been driving the automobile at the time of the crash. Her respective answers were "I never told anyone I was driving the car," and twice "I never told anyone." All three of these witnesses, called on defendant's behalf, testified that Mrs. Duncan had stated that she had been driving at the time of the accident; both the ambulance driver and Miles recalled that Mrs. Duncan had stated that defendant was asleep when the car struck the abutment and both Miles and the patrolman testified that Mrs. Duncan had stated that she was driving at approximately 50 miles per hour when the crash occurred.

The patrolman further testified that the speed limit on the stretch of road near the point of the accident was 65 miles per hour; that this stretch of road was dangerous; and that there were danger signs and "Slippery When Wet" signs posted along the road, although the exact location of these signs was not established, and with respect to the last mentioned type of sign, this witness volunteered that he didn't know "whether the driver had access to see it or not."

Defendant did not take the stand and testify.

After the court's charge the jury returned with a verdict finding defendant "not guilty of negligence in the case." Plaintiffs set forth four grounds in the motion for a new trial, one of which was that the jury's verdict was clearly against the weight of the evidence.^* At the conclusion of the oral argument on the motion the trial judge stated from the bench:

"But I am not too happy with the verdict in view of the evidence in the case. It impressed me during this trial that there was almost overwhelming evidence of negligence on the part of the driver. In fact, I was quite surprised when the verdict came in as it did because I thought there was evidence of negligence.

"I am dissatisfied with the verdict. I think it is against the weight of the evidence, and I set the verdict aside and order a new trial in these cases on that ground."

The order sustaining the motion followed.

In ruling upon a motion for a new trial based on the ground that the verdict is against the weight of the evidence, a district judge must compare the opposing proofs and weigh the evidence (Felton v. Spiro, 78 F. 576 (6th Cir. 1897) (Taft, J.), General American Life Ins. Co. v. Central Nat'l Bank, 136 F.2d 821 (6th Cir. 1943)), and "it is the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that the verdict is against the clear weight of the evidence * * *." Aetna Cas. & Surety Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir. 1941), cited with approval in Turner v. United States, 229 F.2d 944, 946 (6th Cir.), cert. denied, 351 U.S. 970, 76 S.Ct. 1038, 100 L.Ed. 1489 (1956). The power of the trial judge to set aside a verdict as against the weight of the evidence and grant a new trial is thus a check or limitation on the jury's power to render a final and binding verdict, to the end that a miscarriage of justice does not result. However, "courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable." Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 488 L.Ed. 520 (1944); Werthan Bag Corp. v. Agnew, 202 F.2d 119, 122 (6th Cir. 1953). Thus, while the district judge has a duty to intervene in appropriate cases, the jury's verdict should be accepted if it is one which could reasonably have been reached. In applying these two broad principles defining the permissible limits of court action in granting a new trial on the weight of the evidence, the district judge must, as is generally stated, exercise his sound judicial discretion. See Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940); Devine v. Patteson, 242 F.2d 828 (6th Cir.), cert. denied, 355 U.S. 821, 78 S.Ct. 27, 2 L.Ed.2d 36 (1957), and cases cited infra. See generally 6 Moore, Federal Practice, ¶ 59.08 5 (2d ed. 1953).

Although an order granting a new trial is generally not appealable, it is clear that such orders are reviewable on appeal from the final judgment in the second trial. See North Texas Producers Association v. Metzger Dairies, Inc., 348 F.2d 189 (5th Cir. 1965), cert. denied, 382 U.S. 977, 86 S.Ct. 545, 15 L. Ed.2d 468...