Lumbermens Mut. Casualty Co. v. Hutchins, 13188.
| Decision Date | 23 May 1951 |
| Docket Number | No. 13188.,13188. |
| Citation | 188 F.2d 214 |
| Parties | LUMBERMENS MUT. CASUALTY CO. v. HUTCHINS. |
| Court | U.S. Court of Appeals — Fifth Circuit |
G. M. Bodenheimer, Jr., Shreveport, La., for appellant.
Sam A. Freyer, A. B. Freyer, Shreveport, La., for appellee.
Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.
In this case the appellee, as plaintiff, sued the appellant insurer for damages sustained by him in a collision in which a trolley bus he was operating was struck by a truck. The collision occurred at a street intersection in Shreveport, Louisiana. The plaintiff predicated his case upon the specified negligence of the driver of the truck. The personal injuries claimed to have been sustained consisted of a sprain in the lower lumbar region in the vicinity of the sacro illiac joint and right ilium and a ruptured disc in the lower lumbar region of the spine, which injuries are alleged to have caused great pain and suffering, substantial medical expense and total and permanent disability for any form of normal labor.
The defendant denied all allegations of negligence, alleged due care in the operation of the truck, and asserted that the plaintiff was guilty of specified acts of negligence which were the proximate cause of the collision. In the alternative, the defendant plead that the plaintiff was guilty of contributory negligence which barred recovery.
The jury returned a verdict for the plaintiff in the amount of $20,000.00, the limit of the defendant's liability under the provisions of the policy upon which the suit was predicated.
In this Court the defendant vigorously contends that the evidence is wholly insufficient to authorize any recovery predicated upon the negligence of the defendant's insured, and further discloses that a recovery in any event is barred because of the established contributory negligence of the plaintiff. Upon this contention is predictated assignments of error upon the action of the Court in overruling a motion for a directed verdict presented at the conclusion of the evidence, and after trial renewed by a motion for judgment non obstante or for a new trial, which motion was likewise overruled. Error is also assigned here upon the error of the Court in answering a request from the jury made after the jury had considered the case for some time;1 upon the refusal of the Court to charge its tendered requested instruction embracing the proposition that the quantum of damages is a matter of substantive law and that the Federal Court is bound thereby, so that the jury should consider stated awards of the Louisiana State Courts in similar cases, and upon the charge of the Court giving specified and numbered requests of the plaintiff, and "in not explaining" such requests. Error is also here assigned upon two excerpts from the general charge of the Court, and upon an instruction given that "if you find that the complainant is suffering from a ruptured disc, it follows that he is totally and permanently disabled from performing work of any reasonable character."
There are some inconsistencies in the testimony offered by the plaintiff, and some features of it would, if accepted by the jury, have authorized a finding that the plaintiff was guilty of contributory negligence. There was no direct conflict presented by the evidence in behalf of the defendant, for the driver of the truck had gone to parts unknown and could not be subpoenaed nor presented as a witness by the defendant to support its contentions. However, the evidence, taken most favorably for the plaintiff, as we must take it upon appeal,2 is sufficient to authorize the verdict of the jury, and consequently the assignments of error predicated upon the insufficiency of the evidence cannot be sustained.
Coming then to consideration of the errors sought to be assigned upon the excerpts from the charges of the Court, we are confronted with the contention vigorously urged by counsel for appellee that there had been an absolute failure of compliance with Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A., so that the assignments properly present no question for review. This contention is predicated upon the assertion, borne out by the record, that the only exceptions urged upon the trial was the general one confined, as to the defendant's requested instructions not given to, "defendant excepts to the failure of the Court to charge defendant's requested charge number 6, and for charging numbers 2, 3, 4, 8, 9, 10, 11 and 14 of the plaintiff's Special Requested Charges."
We think in view of the full...
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