Glazer v. Glazer, Civ. A. No. 10567.

• Decision Date: 11 January 1968
• Docket Number: Civ. A. No. 10567.
• Citation: 278 F. Supp. 476
• Parties: Guilford GLAZER v. Jerome S. GLAZER and Louis A. Glazer.
• Court: U.S. District Court — Eastern District of Louisiana

278 F. Supp. 476

Guilford GLAZER v. Jerome S. GLAZER and Louis A. Glazer.

Civ. A. No. 10567.

United States District Court E. D. Louisiana, New Orleans Division.

January 11, 1968.

R. Emmett Kerrigan, Bernard Marcus, New Orleans, La., for plaintiff.

Harold R. Ainsworth, New Orleans, La., Alfred Moses, James C. McKay, Washington, D. C., for defendants.

RUBIN, District Judge.

ORDER

This cause having been remanded to this Court for remittitur or, at the option of the plaintiff, a new trial on the issue of damages; and the court having carefully considered the arguments of counsel as to the proper amount of the remittitur and the briefs submitted in support thereof; for the reasons attached hereto:

It is ordered that the verdict be set aside and that there be a new trial on the issue of damages, unless plaintiff enters a remittitur of $1,239,368, in which event judgment will be entered in the amount of $660,632.

REASONS IN SUPPORT OF ORDER STANDARD APPLICABLE TO ENTRY OF REMITTITUR

The Court of Appeals remanded this case for remittitur or retrial on the issue of damages, not "merely because * * * the verdict is excessive in fact" but because "there were errors of law which can be corrected" only in this manner. 374 F.2d at 414. The Court's initial task is to determine the standard this Court should follow in fixing the amount of the remittitur.

The practice of granting a new trial because the verdict reached by the jury was excessive was well established at common law when the Constitution of the United States was adopted.¹ Therefore the use of this method to correct the error of the jury in arriving at a manifestly unjust verdict was not precluded by the Seventh Amendment since the scope and the meaning of that amendment are determined by "the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791."²

But new trials are costly and time consuming. In this case, evidence was heard for a total of fourteen days. While a new trial would be restricted to the evidence relative to damages, even that trial would require several days. "To avoid this burden courts devised the practice of granting a new trial conditionally where the verdict was excessive"³ —that is, they order a new trial to be held unless the successful litigant consents to the reduction or remission of damages to a specified amount.⁴

Since 1822, federal courts have held that a trial court, even after finding that the damages awarded in a prior trial were excessive, has the power to deny a motion for a new trial on condition that the plaintiff remit the excessive amount.⁵ But only rarely have the courts themselves set forth in explicit terms the standard to be followed in fixing the amount of the remittitur.

Professor Moore, in his valuable treatise on federal practice, has set forth those cases in which a remittitur has been directed only with respect to that amount in excess of the highest verdict that a jury could have returned⁶ and those in which the remittitur has been for everything in excess of the lowest amount that a jury could have reasonably found.⁷ But as Professor Moore says, "the majority of the cases * * * disclose no such standards at all, but seem to fix the amount of the residue somewhere between these two extremes, i.e., at a figure that the court believes a proper functioning jury should have found."⁸

The plaintiff urges that the "maximum recovery rule" was adopted by the Fifth Circuit in International Paper Co. v. Busby, 1950, 182 F.2d 790, 793, in which the court said:

"Appellant's contention that the trial judge erred in allowing the verdict to stand to the extent of $5000 is without merit. It complains that the trial judge allowed the verdict to stand for the greatest amount the jury might have found from the evidence, whereas the amount should have been as small a sum as an impartial jury would properly have agreed upon from the evidence. This contention is unsound. The amounts awarded appellee for damages to his farming land, pastures, and livestock, for the loss of a crop for the year in question, and for the inconveniences caused by the presence of buzzards swarming over dead fish washed up in his yard, are not so excessive as to shock the conscience of this court, or even to persuade us that any injustice has been done appellant."

But it is apparent that the court did not in terms approve the "maximum recovery" standard. It said the appellant's contention was unsound; but the only words of approbation it used, and the only words suggestive of a standard, are that the amounts awarded "are not so excessive as to shock the conscience of this court, or even to persuade us that any injustice has been done."

However, in Butts v. Curtis Publishing Co., 5 Cir., 1965, 351 F.2d 702, 718-719, the court held that the trial judge had acted properly in entering a remittitur for the maximum amount of damages the jury could have allowed. The court considered it the trial judge's duty to review a verdict and to take appropriate action if it is too small or too large. The case involved an award for punitive damages, necessarily a matter for the determination of which, as the court observed, "there are, and can be, no precise standards," but with regard to which "a wide variance in the amounts * * * is inescapably inherent." 351 F.2d at 718. The trial court could therefore be guided only by what it felt a maximum permissible amount would be.⁹

These are the only Fifth Circuit cases that deal with the trial court's determination of the correct amount of the remittitur.¹⁰

In a number of federal cases in other circuits the "maximum recovery rule" appears to have been adopted. Thus, in Rice v. Union Pacific R.R. Co., D.C. Neb., 1949, 82 F.Supp. 1002, 1007, the court found that remittitur was warranted if "the portion of the verdict and judgment is found to be in excess of the highest appropriate recovery * * *." See also similar views in Tomljanovich v. Victor American Fuel Co., D.C.Me., 1915, 227 F. 951, 952; and Yurkonis v. Delaware, L. & W. R. Co., E.D.N.Y., 1914, 213 F. 537, 538.

The defendants cite several decisions that they contend leave the amount of a remittitur to the discretion of the trial court even though the result may be an amount less than the maximum jury verdict that would have been allowed. In Lanfranconi v. Tidewater Oil Co., 2 Cir., 1967, 376 F.2d 91, 97, the Second Circuit did point out in dicta that the defendant cannot complain of the remittitur practice as "in fact, the final verdict after remittitur may be below the maximum allowable damages." But it cited only Professor Moore in support of this observation. It went on to fix a remittitur itself, and stated that "we have exercised our best judgment as to what amount should amply reimburse plaintiff for his actual losses," 376 F.2d at 97, and it went on to observe that "the scanty evidence on the maliciousness of the defendant's conduct justifies an award of no greater than" the amount of punitive damages fixed by the court. 376 F.2d at 98.

The latter observation may be taken as an adoption of the maximum recovery view whenever the remittitur is based on excessiveness of the jury's award for the court said:

"Professor Moore points out that appellate courts use remittitur in two general areas: (1) where reversible error is found in the proceedings below, but the court feels it can reasonably approximate the effect of the error on the size of the verdict below and, thus, conditions affirmance on the plaintiff remitting the portion of the verdict traceable to the error; and (2) where the excessiveness of the verdict alone is a ground for reversal, but the court grants the plaintiff the option of remitting the excessive portion or submitting to a new trial." 376 F.2d at 96.

The case then appears to support the maximum recovery rule except where an appellate court is reversing only because of the trial court's error and where it thinks it can reasonably determine the extent of the error. The Fifth Circuit here found the jury verdict excessive, and in addition found error, and it obviously did not think it could "reasonably approximate the effect of the error on the size of the verdict below."

Defendant urges that the Ninth Circuit, in Carlstrom v. United States, 9 Cir., 1960, 275 F.2d 802, affirmed a remittitur entered by the trial court that resulted in a judgment for less than plaintiff's evidence supported. But the issue whether this was correct was not raised, and the remittitur was agreed to. Nor does Muldrow v. Daly, 117 U.S.App.D.C. 318, 1964, 329 F.2d 886, furnish any guidance, for the court there, without discussing the standard to be followed, merely held that the evidence of record clearly provided support for the amount of the remittitur determined by the district judge.

Most important of all, the expressions of the United States Supreme Court furnish inferential support for the "maximum recovery" view. In Northern Pacific R.R. v. Herbert, 1886, 116 U.S. 642, 646-647, 6 S.Ct. 590, 592, 29 L.Ed. 755, the Court approved as "a matter within the discretion of the trial court," a remittitur "of so much of the damages as, in its opinion, the jury had improperly awarded."¹¹ And in Dimick v. Schiedt, 1935, 293 U.S. 474, 476, 55 S.Ct. 296, 79 L.Ed. 603, the Court said of the action of the Court of Appeals that it had "recognized the doctrine, frequently stated by this court, that in the case of an excessive verdict it is within the power of the trial court to grant defendant's motion for a new trial unless plaintiff remit the amount deemed to be excessive * * *." Thus, to the extent that the authorities provide any guidance, the Court concludes that they seem to favor the maximum recovery rule.

The Court also believes that the maximum recovery rule is preferable as a matter of policy.

Where damages are either liquidated or can be determined by the application of fixed rules to any given...