Hust v. Moore-McCormick Lines, Inc.

• Citation: 180 Or. 409,177 P.2d 429
• Parties: HUST <I>v.</I> MOORE-McCORMACK LINES, INC.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 26 November 1946
• Court: Supreme Court of Oregon

180 Or. 409

177 P.2d 429

HUSTv.

MOORE-McCORMACK LINES, INC.^*

Supreme Court of Oregon.

Argued November 19, 1946.

Reargued November 26, 1946.

Reversed February 11, 1947.

Courts — Questions decided

1. The United States Supreme Court's decision, reversing state Supreme Court's judgment, which reversed circuit court's judgment on jury's verdict for seaman, suing steamship company under federal Merchant Marine Act for injuries, sustained on government-owned vessel, on grounds that plaintiff was not defendant's employee and that injuries were caused by vessel's master employed by United States, foreclosed questions of master's relationship to defendant and defendant's responsibility for master's negligence, though not expressly discussed.

Courts — Excessive damages

2. The state Supreme Court's mistaken holding that steamship company was not liable under federal Merchant Marine Act for injuries to seaman as ground for reversal of circuit court's judgment on jury's verdict for seaman against such company did not deprive company of right to consideration of question of excessive damages raised by it, where such question was not passed on by state Supreme Court or United States Supreme Court, which reversed state Supreme Court's judgment on ground that plaintiff was company's employee, so that plaintiff's motion to remand cause with direction to reinstate circuit court's judgment was properly denied.

Courts — Federal statute — Law governing

3. In case involving enforcement of federal statute, state Supreme Court is governed by federal courts' decisions as to matters of substantive right, but where question is purely procedural, state may apply its own law.

New trial — Excessive damages

4. The constitutional provision that no fact tried by jury shall be re-examined in any court, unless there is no evidence supporting verdict, divests circuit courts of power to set aside verdicts on ground of excessive damages.

Appeal and error — Judgment on appeal

5. The constitutional provision that if judgment appealed from should be changed and Supreme Court is of opinion that it can determine what judgment should have been entered, it shall direct entry of such judgment, authorizes Supreme Court, where

error has been committed on trial, to enter or direct entry of judgment which should have been entered in lower court, instead of remanding case thereto for new trial.

Appeal and error — Power of Supreme Court

6. The state Supreme Court's power, if any, to determine plaintiff's damages from evidence and enter judgment for amount thereof on appeal from judgment on jury's verdict awarding damages claimed by defendant to be excessive, cannot be exercised in case arising under federal Merchant Marine Act because it would affect plaintiff's fundamental rights controlled by federal decisions.

Jury — Merchant Marine Act

7. The right of "trial by jury," accorded by federal Merchant Marine Act to seamen suing thereunder for injuries sustained, means jury trial with due observance of respective functions of trial judge and jury in jury trial at common law.

Courts — Conflict of laws

8. Generally, the court at the forum determines, according to its own conflict of laws rule, whether given question is one of substance or procedure, but in cases arising under federal acts, United States Supreme Court decides such question for itself and its rulings thereon are binding on state courts.

Appeal and error — Damages — Verdict of jury

9. The state Supreme Court cannot reduce amount of jury's verdict, awarding seaman damages for injuries sustained, and enter judgment for lesser sum, on appeal from judgment on such verdict in action under federal Merchant Marine Act, as rule vesting such authority in court would be substantive, not merely procedural, and exercise of such power would constitute failure to observe traditional lines of demarcation between court's and jury's functions.

Courts — Excessive damages

10. In federal courts, trial courts' orders denying motions for new trial on ground of excessive damages will not be reviewed on appeal.

Appeal and error — Opinion of trial judge

11. On appeal from order denying defendant's motions for judgment notwithstanding jury's verdict for plaintiff and for new trial, trial judge's written memorandum opinion, referred to in order as stating reasons therefor, attached to bill of exceptions, and specifically referred to in trial judge's certificate thereto, was properly before Supreme Court for consideration as against contention that it was mere opinion without strict legal efficacy and not entitled to be made part of record.

Courts — Ruling on motions

12. Where trial judge declared damages awarded plaintiff excessive, but declined to decide whether defendant should be granted new trial for such reason and denied defendant's motion therefor on ground that reduction of verdict and filing of remittitur would solve no problem if it were ultimately determined that defendant was not liable, thereby reserving decision on motion pending outcome of appeal, Supreme Court should remand case to circuit court for single purpose of passing on such motion after United States Supreme Court's reversal of state Supreme Court's judgment reversing judgment on verdict and remanding cause to circuit court with directions to enter judgment for defendant.

New trial — Excessive damages

13. Where damages awarded plaintiff by jury's verdict are found to be excessive, though jury was not influenced by prejudice or passion, plaintiff may be required to file remittitur or new trial be granted defendant.

                  See 11 Am. Jur. 501; lex loci or lex fori, note, 149 A.L.R
                775; 36 C.J.S., Federal Courts, § 281
                

IN BANC.

Appeal from Circuit Court, Multnomah County.

MARTIN W. HAWKINS, Judge.

Erskine Wood, of Portland (Wood, Matthiessen & Wood and Lofton L. Tatum, of Portland, on brief), for appellant.

Edwin D. Hicks and B.A. Green, of Portland (Green & Landye and Edwin D. Hicks, of Portland, on brief), for respondent.

REVERSED AND REMANDED.

LUSK, J.

This case is here for the second time. It was an action under § 33 of the Merchant Marine Act of 1920, 46 U.S.C.A., § 688, commonly known as the Jones Act, brought by a seaman to recover damages for personal injury sustained by him while engaged in the performance of his duties on a government owned vessel. In the Circuit Court the plaintiff was awarded a verdict by the jury of $35,000.00. Motions of the defendant for judgment non obstante veredicto and for a new trial, the latter on the ground of excessive damages, were denied. The defendant appealed from the judgment to this court, assigning as error the Circuit Court's denial of its motions for a directed verdict and for judgment non obstante veredicto, and its refusal to order a new trial or to require plaintiff to file a remittitur in lieu thereof.

The first two assignments of error went to the heart of the plaintiff's action. The first asserted that the plaintiff could not maintain the action because he was not in the employ of the defendant; the second that there was no evidence connecting the defendant with the cause of the injury, since, it was said, all the possible causes were the responsibility of the master of the vessel, "an agent and employee of the United States".

This court, being of the opinion that the contentions of the defendant just stated were sound in law and that, therefore, the action was not authorized by the Jones Act, reversed the judgment and remanded the cause to the Circuit Court with directions to enter judgment for the defendant. Hust v. Moore-McCormack Lines, 176 Or. 662, 158 P. (2d) 275. We did not, of course, pass on the question of excessive damages.

The Supreme Court of the United States granted certiorari, held that the plaintiff was an employee of the defendant, reversed our judgment, and remanded the cause "for further proceedings not inconsistent with this opinion." Hust v. Moore-McCormack Lines, Inc., 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534.

Thereafter, the defendant filed a motion in this court for a further hearing and argument, (1) upon the question raised by the second assignment of error made by the defendant in its brief in this court, (2) upon the question of excessive damages. In response to this motion plaintiff filed a motion praying that the mandate of the Supreme Court be certified to the Circuit Court for Multnomah County for reinstatement of the judgment entered upon the unanimous verdict of the jury. These motions were filed, it should be observed, subsequent to October 21, 1946, when the Supreme Court of the United States denied defendant's petition for a rehearing.

1. We ordered reargument of the single question of excessive damages. We were and are of the view that, while the opinion of the Supreme Court of the United States does not expressly discuss the relationship of the master of the vessel to the defendant and the defendant's responsibility for his negligence, the necessary effect of the decision is to foreclose that question, for, if, in the opinion of that court, the defendant was not responsible for the negligent acts of the master resulting in injury to the plaintiff, then this court was right in holding that a verdict should have been directed for the defendant and our judgment should not have been reversed. In other words, the Supreme Court could not have rendered the decision that it did had it not considered the position of the defendant in this regard untenable. And a careful reading of the opinion convinces us that, so far as any question involved in this case is concerned, the Supreme Court of the United States thought and intended to hold that the master of the vessel was an employee of the defendant no less than the plaintiff or any other member of the crew.

2. But the question raised by the assignment of error based on the overruling of the motion for a new trial is on different ground. That question has not been passed on...