Hulett v. Brinson, 12513.

• Decision Date: 22 December 1955
• Docket Number: No. 12513.,12513.
• Citation: 97 US App. DC 139,229 F.2d 22
• Parties: Orren HULETT, Appellant, v. Emmitt L. BRINSON, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

97 US App. DC 139, 229 F.2d 22 (1955)

Orren HULETT, Appellant, v. Emmitt L. BRINSON, Appellee.

No. 12513.

United States Court of Appeals District of Columbia Circuit.

Argued May 23, 1955.

Decided December 22, 1955.

Petition for Rehearing Denied January 11, 1956.

Writ of Certiorari Denied April 9, 1956.

Mr. Karl M. Dollak, Washington, D. C., for appellant.

Mr. E. Willard Hyde, Washington, D. C., with whom Mr. Mario S. Romero, Washington, D. C., was on the brief, for appellee.

Before BAZELON, WASHINGTON and BASTIAN, Circuit Judges.

Writ of Certiorari Denied April 9, 1956. See 76 S.Ct. 659.

BASTIAN, Circuit Judge.

Appellee-plaintiff, Brinson, sued appellant-defendant, Hulett, for malicious prosecution. The jury returned a verdict, and judgment was entered for the plaintiff against the defendant in the amount of $20,000. Thereafter, the defendant filed a motion for judgment n. o. v. or for a new trial, contending that there was no substantial and competent evidence to sustain the verdict; that there was no competent and substantial evidence to sustain the amount of damages awarded to plaintiff; and that the damages are "patently excessive and were obviously granted in complete disregard of the testimony, and outrageously disproportionate to any wrong done." The trial court was also requested to order a remittitur. The defendant's motions were denied, and this appeal followed.

The defendant claims three errors: (1) that the trial court erred in not directing a verdict for the defendant; (2) that the trial court erred in denying defendant's motion for a new trial, or for a remittitur, by failing to recognize the great disparity between the facts and the jury's award, thereby constituting an abuse of discretion amounting to an error of law; and (3) that the trial court erred in not excluding reference to defendant's garb and a defamatory reference to the alleged extra-marital status of a main witness for the defendant.

We feel that there was no error in the failure of the trial court to direct a verdict for the defendant, nor do the remarks of plaintiff's counsel or the actions of the trial judge with regard thereto justify reversal.

We come then to defendant's claim that there was error in the denial of the motion for a new trial, or for a remittitur.

Ordinarly, an appellate federal court will not review the action of a trial court in granting or denying a motion for a new trial on the grounds of inadequacy or excessiveness of verdict. Coca Cola Bottling Works v. Hunter, 95 U.S. App.D.C. 83, 219 F.2d 765; Fairmount Glass Works v. Cub Fork Coal Co., 1933, 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439; Washington Times Co. v. Bonner, 66 App.D.C. 280, 86 F.2d 836, 110 A.L.R. 393.

This court, in Woods v. Richmond & Danville R. R. Co., 1 App.D.C. 165, dismissed an appeal from an order of the District Court setting aside a verdict for the plaintiff (appellant) and granting a new trial. The jury had rendered a verdict for the plaintiff in the amount of $13,000 for damages for injury resulting in the loss of a foot. The defendant had moved for a new trial on the ground that the verdict was excessive and against the weight of evidence. No offer was made by plaintiff to remit any portion of the damages found until the hearing before this court, when it was suggested that if the court were satisfied that the verdict was in accordance with the evidence, but excessive in amount, the plaintiff would enter a remittitur of such amount as might be reasonable. The court found conflicting evidence but enough testimony on behalf of each party to sustain a judgment for either. The court pointed out that it is difficult for an appellate court to come to a satisfactory conclusion concerning the credence and weight to be given to the respective witnesses, and that the action of the trial court ought not to be disturbed by an appellate court save upon conclusive reasons. Finding discretion in the trial court in setting aside a verdict and awarding a new trial, the court stated:

"While it is probable, the motion may have been sustained upon the ground only, that in the opinion of the court, the verdict was excessive in amount; still there is nothing in the record which would authorize us to indicate any amount of probable excess, upon the entry of a remittitur of which the judgment might be here rendered for the remainder. To do so in this case would be to usurp the functions of the jury. It is only in those cases where the findings of the jury may be separated into distinct parts, or where errors readily discernible and separable may have increased a finding, that we would feel ourselves clearly justified in directing or permitting a remittitur of a part." At pages 169-170.

Even though the trial court in the Woods case set aside the verdict of the jury and awarded a new trial, the language quoted above, as to the function of an appellate court in ordering a remittitur, is appropriate.

The defendant cites Boyle v. Bond, 88 U.S.App.D.C. 178, 187 F.2d 362, wherein this court reversed an order of the trial court and remanded the case for new trial unless the plaintiff filed a remittitur of $6,809.06 within ten days. The court held that the verdict on an action for a breach of contract was grossly excessive under the evidence. Defendants (appellants) had moved for a new trial, attacking the verdict as grossly excessive, the motion being denied. The court cited 28 U.S.C.A. § 2106 as authority for its action. That section reads as follows:

"The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances. June 25, 1948, c. 646, 62 Stat. 963."

In the Boyle case the court found that the claim for commissions due was susceptible of and required proof of a definite amount, and that the damages could be proven with a fair degree of certainty. It was also held in that case that the trial court failed to recognize the great disparity between the proof and the jury's award, which constituted a technical abuse of discretion amounting to an error of law. In finding abuse of discretion, the court reversed and remanded the cause for new trial unless the appellee preferred to settle the matter by filing a remittitur within ten days in the Court of Appeals, in which event the judgment would stand affirmed.

In state courts there is apparently an established practice of ordering a remittitur in appellate courts, even in tort cases where the damages are unliquidated; but in federal jurisdictions the practice seems to be limited to contract cases and the like, where the excess amount of the verdict can be fairly well determined.¹ No case has been found in a federal jurisdiction where an appellate court undertook to cure by remittitur an excessive verdict rendered in a tort action for unliquidated damages.²

In the recent case of National Alfalfa Dehydrating & Milling Co. v. Sorensen, 8 Cir., 1955, 220 F.2d 858, the court, citing Glendenning Motorways v. Anderson, 8 Cir., 1954, 213 F.2d 432,³ held that in the Federal courts alleged excessiveness of verdict in tort cases was not reviewable on appeal.

It appears clear that the rule in the Federal courts is that an appellate court may reverse, if at all, for excessiveness of verdict only where the verdict is so grossly excessive or monstrous as to demonstrate clearly that the trial court has abused its discretion in permitting it to stand.⁴

In the recent case of Neese v. Southern Railway Co., 76 S.Ct. 191, the situation was this: A jury verdict had been obtained in the United States District Court for the Eastern District of South Carolina in the amount of $60,000 in an action for wrongful death. The District Judge ordered a remittitur in the sum of $10,000, which remittitur was filed, judgment thereupon being entered for $50,000. Appeal was taken to the United States Court of Appeals for the Fourth Circuit, which reversed on the ground that the judgment was excessive and sent the case back for a new trial on the question of damages only. The Supreme Court⁵ reversed, saying:

"We reverse the judgment of the Court of Appeals, 4 Cir., 216 F.2d 772, without reaching the constitutional challenge to that court\'s jurisdiction to review the denial by the trial court of a motion for a new trial on the ground that the verdict was excessive. Even assuming such appellate power to

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