Rankin v. Shayne Brothers, Inc.

• Decision Date: 23 April 1956
• Docket Number: 12437.,No. 12436,12436
• Citation: 234 F.2d 35,98 US App. DC 214
• Parties: Lucille M. RANKIN, Administratrix of the Estate of Ronald Rankin, Deceased, et al., Appellants, v. SHAYNE BROTHERS, Inc., Appellee. Billy F. RANKIN, Appellant, v. SHAYNE BROTHERS, Inc., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

98 US App. DC 214, 234 F.2d 35 (1956)

Lucille M. RANKIN, Administratrix of the Estate of Ronald Rankin, Deceased, et al., Appellants, v. SHAYNE BROTHERS, Inc., Appellee.

Billy F. RANKIN, Appellant, v. SHAYNE BROTHERS, Inc., Appellee.

Nos. 12436, 12437.

United States Court of Appeals District of Columbia Circuit.

Argued December 14, 1955.

Decided April 23, 1956.

Mr. Lester Wood, Washington, D. C., for appellants.

Mr. J. Harry Welch, Washington, D. C., with whom Messrs. H. Mason Welch and John R. Daily, Washington, D. C., were on the brief, for appellee.

Before PRETTYMAN, FAHY and DANAHER, Circuit Judges.

FAHY, Circuit Judge.

At an intersection in the District of Columbia there was a collision of a passenger automobile and a truck. The truck was owned by defendant, a corporation, and was operated by its agent, Walker. The driver of the car was Billy F. Rankin, and the passengers were his wife, Lucille M. Rankin, and their infant son, Ronald Rankin, who was about nine weeks old. Both husband and wife were injured as a result of the collision, and their son died. In No. 12437 Billy F. Rankin sues in his individual right, and in No. 12436 his wife sues both in her own right and, under §§ 16-1201 to 16-1203, D.C.Code 1951, as administratrix of her son's estate for his wrongful death. The cases were consolidated for trial and tried to a jury. The jury found for Lucille M. Rankin as administratrix in the sum of $123.90, and for her individually in the sum of $3,000. The court directed a verdict for the defendant in the suit of the husband. Judgments were entered accordingly and all plaintiffs appeal.

Individually and as administratrix Mrs. Rankin complains principally of the inadequacy of the damages. In the husband's appeal the chief error relied upon is the direction of a verdict for defendant. This comes ultimately in our view to the question whether in that case the husband was entitled to go to the jury on the theory defendant had a last clear chance to avoid the accident.

The failure of the jury to award damages for the death of the infant other than $123.90, the amount of out-of-pocket expenses, creates considerable wonderment. In awarding this amount the jury was required to find defendant responsible for the infant's death. The jury having so found, the statute, § 16-1201, D.C.Code 1951, permitted substantial damages, not limited to out-of-pocket expenses actually incurred. National Homeopathic Hospital v. Hord, 92 U.S. App.D.C. 204, 204 F.2d 397. See, also, the opinion of District Judge Holtzoff in that litigation, D.C., at 102 F.Supp. 792. See, further, United States Electric Lighting Co. v. Sullivan, 22 App.D.C. 115; Gill v. Laquerre, 51 R.I. 158, 152 A. 795; Atkeson v. Jackson Estate, 72 Wash. 233, 130 P. 102, affirmed on rehearing en banc, 74 Wash. 700, 134 P. 175; Ihl v. 42d Street & Grand Street Ferry R. R., 47 N.Y. 317. The principles established in the cases as to the measure of damages were correctly stated to the jury by District Judge Tamm. He instructed that in event defendant was liable the plaintiff-administratrix,

"is entitled to recover the value of the child\'s services during the child\'s minority, that is, until the child reaches 21 years of age, had the child lived, and such further sum as a parent might properly have received from the deceased if the deceased had lived, less the cost that would have been incurred in bringing up the child.

"This rule is based upon the theory that the parent is entitled to the services and to the earnings of the child during the child\'s minority, and also may expect a contribution from him thereafter if needed.

"The amount of damages to be awarded must be based largely on the good sense and sound judgment of the jury, because this amount cannot be computed by any mathematical formula, and the amount must be based upon all the facts and circumstances of the case involving such matters as the age of the child at the time of its death; the age and financial standing of the parents, the life expectancy of the child and of the parents under the mortality tables as of the date of the child\'s death, and similar considerations."

No other or different instruction in this regard was requested on behalf of plaintiff.

After retiring the jury asked to be instructed again about the infant's case. Instructions previously given which were unrelated to the question of damages were re-read to the jury. The court then inquired whether the jury also desired repetition of the instructions on the measure of damages in the infant's case. The foreman responded he did not believe so. After the jury retired again, however, a note was sent to the court by the foreman inquiring what factors under the law could be considered as a basis for determining the amount of damages for the death of the infant in the event the jury allowed a recovery. The jury was brought back and the instruction on this subject above set forth was repeated, with the comment by the court, "That is the limit of the measure of damages upon which the Court can charge you." No additional charge was then requested by counsel for the administratrix and no objection was made to the one given.

In these circumstances, and notwithstanding there was evidence to support substantial damages, we are impelled to hold that the District Court did not abuse its discretion in refusing to grant a new trial on the ground of inadequacy of the award. Though properly instructed the jury appears to have been unable to find with sufficient certainty that substantial damages measurable in money grew out of the death of the infant. The District Court was not required upon the evidence adduced to insist upon a different result. This court, like courts generally, has been reluctant to set aside jury awards for personal injuries on the ground of either excessiveness or inadequacy, assuming constitutional power to do so.¹ Coca Cola Bottling Works v. Hunter, 95 U.S.App.D.C. 83, 219 F.2d 765; National Homeopathic Hospital v. Hord, supra; Frasca v. Howell, 87 U.S.App.D.C. 52, 182 F.2d 703; Dean v. Century Motors, 81 U.S.App.D.C. 9, 154 F.2d 201; Ramsey v. Ross, 66 App. D.C. 186, 85 F.2d 685; cf. Hulett v. Brinson, D.C.Cir., 229 F.2d 22. And in Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481, 53 S.Ct. 252, 254, 77 L.Ed. 439, it is said:

"* * * The rule that this Court will not review the action of a federal trial court in granting or denying a motion for a new trial for error of fact has been settled by a long and unbroken line of decisions; and has been frequently applied where the ground of the motion was that the damages awarded by the jury were excessive or were inadequate. The rule precludes likewise a review of such action by a Circuit Court of Appeals."²

We refer also to Dunn v. United States, 284 U.S. 390, 394, 52 S.Ct. 189, 191, 76 L.Ed. 356, where it is said that though the verdict, as in the case at bar, possibly may have been the result of compromise, or of a mistake on the part of the jury, "verdicts cannot be upset by speculation or inquiry into such matters." Compare, however, such cases as Wallace v. City of Rock Island, 323 Ill.App. 639, 56 N.E.2d 636.

In the case of Lucille M. Rankin, individually, the verdict, as we have stated, was in her favor and in the sum of $3,000. The principles above set forth even more clearly apply to her case. The actual expense loss to Mrs. Rankin amounted to approximately $800, leaving some $2,200 to cover damages for injuries to her person. These injuries were not insignificant and we may honestly feel that the amount awarded to her individually, as well as to her as administratrix, was less than should be. But the decision was for the jury. Here, as when a jury is thought to have leaned toward an excessive award, an appellate court should be reluctant to interfere, particularly when the trial court has refused to do so.

In No. 12437, the appeal of Billy F. Rankin, it was error for the court to direct a verdict for defendant at the conclusion of all the evidence. The court did so because of Rankin's contributory negligence. But we think Rankin was entitled to have the case go to the jury on the theory of the last clear chance, as he requested. Before analyzing the relevant evidence we restate the essential elements of the doctrine itself. Insofar as here pertinent these are that notwithstanding plaintiff's contributory negligence defendant may be found liable if the jury should find that plaintiff was in a position of peril of which he was oblivious, that defendant was aware, or had he exercised reasonable care would have been aware, of plaintiff's peril and obliviousness...