Lanni v. Wyer

• Decision Date: 11 February 1955
• Docket Number: No. 113,Docket 23193.,113
• Citation: 219 F.2d 701
• Parties: Louis P. LANNI, Plaintiff-Appellee, v. William WYER, as trustee of the Long Island Rail Road Company, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

219 F.2d 701 (1955)

Louis P. LANNI, Plaintiff-Appellee, v. William WYER, as trustee of the Long Island Rail Road Company, Defendant-Appellant.

No. 113, Docket 23193.

United States Court of Appeals, Second Circuit.

Argued January 7, 1955.

Decided February 11, 1955.

William J. O'Brien, Barry, Treanor, Shandell & Brophy, New York City, Desmond T. Barry, Joseph J. Brophy, New York City, of counsel, for appellant.

William A. Blank, Brooklyn, N. Y., for appellee.

Before SWAN and MEDINA, Circuit Judges, and DIMOCK, District Judge.

SWAN, Circuit Judge.

The plaintiff was injured on August 1, 1953 while working as a brakeman employed by the Long Island Rail Road. He brought the present action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Liability was conceded, and the case went to a jury to determine the amount of damages to be awarded. The jury returned a verdict for $55,000. The defendant moved to set aside the verdict and to grant a new trial on the ground that the verdict was excessive and was induced by inflammatory remarks of plaintiff's counsel during summation. This motion the district court denied. The defendant has appealed from the judgment and from the denial of his motion.

Little need be said with respect to the appellant's contention that the verdict is excessive. The voluminous record consists almost entirely of hospital records and testimony by doctors whose opinions differed. The plaintiff's experts were of opinion that he had sustained organic brain damage, upon which was superimposed a conversion hysteria, and that his disability was total and permanent. The defendant's doctors denied that the plaintiff's brain had been permanently damaged, agreed that he was suffering from conversion hysteria, and thought that his condition would improve when the present litigation was terminated. The character of his injuries and the permanence of his disability were issues left to the jury in a proper charge, as to which no complaint is made by the appellant. It would be futile to discuss the lengthy medical testimony. The plaintiff was 37 years old and had earned about $4,000 a year. If his disability was permanent the verdict of $55,000 was not excessive. If the jury thought his disability was not permanent, it was for them to decide how long it might continue and to assess the damages accordingly. We cannot know on which theory they acted; nor on either theory can we say their award was wrong. Armenia v. Wyer, 2 Cir., 210 F.2d 592, 596; Scott v. Baltimore & O. R. Co., 3 Cir., 151 F.2d 61, 64; Pariser v. City of New York, 2 Cir., 146 F.2d 431, 434; Herzig v. Swift & Co., 2 Cir., 154 F.2d 64, 66.

More can be said in favor of the appellant's contention that the verdict should be set aside because induced by counsel's inflammatory remarks on summation. His remarks, cited in the margin, were certainly inflammatory.¹ The railroad was under no duty to provide medical treatment for the plaintiff. See Cortes v. Baltimore Insular Line, 287 U.S. 367, 376, 53 S.Ct. 173, 77 L.Ed. 368. It had voluntarily paid for such medical care as he desired, and contrary to the advice of his own doctor, he had refused to be hospitalized. It was obviously improper to argue in summation that the railroad should have sent "big neuropsychiatrists" to see him and not left him "to the mercy of the family, little neighborhood doctors"; and that "after this lawsuit was started they abandoned Lanni in Rahway" and "want to write him off as debris and dunnage * * * at the best price that they can buy it at here." The "heat of oratory" is no excuse for such remarks; nor were they justified as an answer to defendant's summation in which plaintiff was characterized as a malingerer and "fraud". Their purpose can only have been to arouse passion or prejudice in the jury. During the course of the summation counsel for the defendant made objection but was requested by the court to reserve his objections until the end of the argument. He then renewed them and they were overruled, the court admonishing the jury that "you are to evaluate the evidence in this case apart from any expressions of oratory or exhortations, or anything that borders on the inflammatory, though I must say that I did not see anything...