Mooney v. Henderson Portion Pack Co.
| Decision Date | 07 July 1964 |
| Docket Number | No. 15639.,15639. |
| Citation | 334 F.2d 7 |
| Parties | Ernest Gene MOONEY, Plaintiff-Appellant, v. HENDERSON PORTION PACK CO., Inc., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Albert L. Hodge, Chambliss, Chambliss & Hodge, Chattanooga, Tenn., for appellant.
Marvin Berke, Berke & Berke, Chattanooga, Tenn., for appellee.
Before MILLER, O'SULLIVAN and PHILLIPS, Circuit Judges.
This is an action for personal injuries, in which jurisdiction is based upon diversity of citizenship. The jury returned a verdict in favor of plaintiff-appellant in the amount of $50,000, consisting of $35,000 in compensatory damages and $15,000 in punitive damages. The District Court granted a remittitur of $10,000 in the award of punitive damages, which was accepted by plaintiff-appellant under protest. We quote the following language from the order of the District Court:
Appellee has filed a motion to dismiss the appeal on the ground that appellant accepted the remittitur in the District Court and accepted and collected the reduced judgment of $40,000 before his notice of appeal was filed.
Tennessee has a statute1 which allows the party in whose favor a verdict has been rendered in a state court proceeding, in which a remittitur has been suggested, to accept the remittitur under protest and to appeal from the action of the trial court to the Tennessee Court of Appeals.
In support of its motion to dismiss, appellee relies upon the decision of this court in Bristol Gas & Electric Co. v. Boy, 261 F. 297, (C.A. 6), holding that the statute quoted in the margin has no application in a United States District Court sitting in Tennessee and that the action of the District Judge in ordering a remittitur as a condition to denying a motion for a new trial is not appealable. The Bristol case was decided by this court prior to the decision of the Supreme Court in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Under the Erie decision, this Tennessee statute will be applied in the federal courts sitting in Tennessee. Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079; Tracy v. Finn Equipment Co., 290 F.2d 498, 500 (C.A. 6).
"The right of the trial judge to suggest and approve a rem...
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...382 F.2d 73 (7th Cir. 1967) (By consenting to remittitur, plaintiff waived objection to judgment entered) and Mooney v. Henderson Portion Park Co., 334 F.2d 7 (6th Cir. 1964) (Appealability of remittitur in diversity case treated as a matter of state law). See also Wright and Miller, Federa......
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...order of remittitur is determined by state law under the principles of Erie Railroad Co. v. Thompkins. See Mooney v. Henderson Portion Pack Co., Inc., 334 F.2d 7, 8 (6th Cir. 1964). See also Manning v. Altec, Inc., supra at 131. In Ohio, absent a showing that verdict was tainted by passion ......
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Mooney v. Henderson Portion Pack Co.
...and took this appeal from that portion of the judgment. The appealability of the order has been heretofore upheld in Mooney v. Henderson Portion Pack Co., Inc., 334 F.2d 7, Georgia Code, Section 105-2002, which is the applicable law on the merits of this case, provides: "In every tort there......
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...See Burnett v. Coleman Co., 507 F.2d 726 (C.A. 6 1974); Manning v. Altec, Inc., 488 F.2d 127 (C.A. 6 1973); Mooney v. Henderson Portion Pack Co., 334 F.2d 7 (C.A. 6 1964). (2, 3) The proper role of the trial and appellate courts in the federal system in reviewing the size of jury verdicts i......