Hughey v. Sullivan

• Decision Date: 10 March 1897
• Docket Number: 4,884.
• Parties: HUGHEY v. SULLIVAN.
• Court: U.S. District Court — Southern District of Ohio

80 F. 72

HUGHEY v. SULLIVAN.

No. 4,884.

United States Circuit Court, S.D. Ohio.

March 10, 1897

Sidney G. Striker, for plaintiff.

Coppock & Gallagher, for defendant.

HAMMOND J.

In this case, which is an action for the wrongful killing of another a new trial was granted, because, in the opinion of the court, the damages assessed by the jury were inadequate. The defendant now moves to vacate that order, upon the ground that section 5306 of the Revised Statutes of Ohio forbids it. That section reads as follows:

'A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages equal the actual pecuniary injury to the plaintiff.'

The argument submitted in favor of the motion is that this is a rule of property prescribed by the legislature of Ohio; that inasmuch as an action for the wrongful killing of another is purely statutory, the plaintiff must be bound by the limitations placed upon it. It is contended that this section of the statute is to be read in connection with section 6134 of the Revised Statutes, giving the right of action in cases of this character, and operates as a proviso thereto, so that it shall read: 'Provided, that the plaintiff in such action shall not have a second trial by reason of inadequacy of damages. ' The trouble with this argument is that the legislature itself has not proceeded upon that theory, nor has it confined the restriction to that class of actions which are purely statutory, and particularly it has not placed it upon that provision of the statute giving damages for the wrongful killing of another. The section 5306 forbidding new trials, first applies to all classes of injuries to the person or reputation, and then a sweeping clause includes every other action where the pecuniary injury has been compensated. It seems to be somewhat a prohibition against giving another opportunity for punitive damages. Neither counsel has cited any adjudication by the courts of Ohio construing this section, and I shall not take time to look up the cases, but it is not impossible that the courts might hold that it does not apply at all to the action for the wrongful killing of another. In its terms, it is descriptive of 'an action for an injury to the person or reputation. ' Of course, in one sense the killing of another is an injury to the person, but it is not the injury to the person for which the statute of Ohio gives the damages for the killing. The new action is confined to the pecuniary loss sustained by the surviving relatives who are entitled to it. It does not proceed from the person killed, but as a direct grant to the relatives, and possibly this action cannot be at all brought within the prohibitory section concerning new trials; or, if so, it falls within the last clause of that section, and not the first; and then since, in the opinion of the court, the damages given by the jury do not 'equal the actual pecuniary injury to the plaintiff,' a new trial is not prohibited. Again, the attention of the legislature of Ohio was directly concerned in placing a limitation upon the amount to be recovered for the wrongful killing of another, and the maximum was fixed at $10,000. If the legislature had intended to fix a minimum limitation, or rather to lower the maximum under certain conditions, that was the place to do it; and we may assume that it had no such intention from the fact that it did not. This section 5306 is a rule of practice, and is found in the practice part of the Code, being intended to regulate the action of the state courts in the matter of granting new trials; and any limitation that it may place upon the amount of damages to be recovered for personal injuries is purely incidental. It is a mere closing of the courts after one trial, somewhat like the operation of the statute of limitations. The section is not in pari materia with the other statute giving the right of action, and therefore is not within the rule requiring them to be construed together. One is an act establishing the right of property, and is upon an entirely different subject from the other regulating practice of the courts. As a practice act, it is not binding on us, not being within the purview of Rev. St. U.S. Sec. 914.

Mr. Justice Gray, speaking for the supreme court and of the federal courts, says:

'In regard to motions for a new trial and bills of exceptions, those courts are independent of any statute or practice prevailing in the courts of the state in which the trial is had. ' Missouri Pac. Ry. Co. v. Chicago & A.R. Co., 132 U.S. 191, 10 Sup.Ct. 65.

Previously, the same learned justice, speaking for the circuit court of the United States, and quoting section 914 of the Revised Statutes of the United States, had said, in U.S. v. Train, 12 F. 852, that:

'The object of the former section was to assimilate the form and manner in which the parties should present their claims and defenses in the preparation for and trial of suits in the federal courts to those prevailing in the courts of the state. It does not include state statutes requiring instructions to the jury to be reduced to writing, or permitting such instructions and certain papers read in evidence to be taken by the jury when they retire, or requiring the jury to be directed, if they return a general verdict, to find specially upon particular questions of fact involved in the issues. Nudd v. Burrows, 91 U.S. 426; Sawin v. Kenny, 93 U.S. 289; Railroad Co. v. Horst, Id. 291; West v. Smith, 1010 U.S. 263. It does not apply to motions for a new trial, nor, whatever may be the rule prescribed by the statutes of the state upon that subject, does not control or affect the power of the federal courts under the judiciary act of September 24, 1789 (chapter 20, Sec. 17), and under section 726 of the Revised Statutes, to grant or refuse a new trial at their discretion. Railroad Co. v. Horst, above cited; Newcomb v. Wood, 97 U.S. 581. ' U.S. v. Train, 12 F. 852.

It was also ruled, but upon another point of practice, by Mr. District Judge Brown (now Mr. Justice Brown, of the supreme court of the United States), that this conformity practice act does not 'disturb the settled law of the federal courts with respect to granting or refusing new trials. ' Osborne v. Detroit, 28 F. 385.

It was also said by Mr. Circuit Judge Brewer (now Mr. Justice Brewer, of the supreme court of the United States) that:

'The effect of the statutes of congress, as interpreted by the decisions of the supreme court, is that this matter of new trials in civil cases, depending upon the discretion of the trial court, is something which is settled by the law of congress, and cannot be affected by any state law. ' U.S. v. Molloy, 81 F. 19, 23.

This was said in overruling a motion for a new trial, which the statutes of Missouri directly required should be granted under similar circumstances in the state court.

In the case of Railway Co. v. Putnam, 118 U.S. 545, 553, 7 Sup.Ct. 1, 2, Mr. Justice Gray, again speaking for the supreme court of the United States, denied the right of the legislature of the state to regulate the conduct of the trial judge in instructing the jury, saying: 'The powers of...