Silverman v. Travelers Insurance Company

• Decision Date: 04 April 1960
• Docket Number: No. 18055.,18055.
• Citation: 277 F.2d 257
• Parties: Alexander SILVERMAN and Mrs. Ethel Silverman, Appellants, v. TRAVELERS INSURANCE COMPANY and David A. Larson, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

277 F.2d 257 (1960)

Alexander SILVERMAN and Mrs. Ethel Silverman, Appellants, v. TRAVELERS INSURANCE COMPANY and David A. Larson, Appellees.

No. 18055.

United States Court of Appeals Fifth Circuit.

April 4, 1960.

COPYRIGHT MATERIAL OMITTED

H. Alva Brumfield, Baton Rouge, La., Isaac Abramson, Shreveport, La., Gene S. Palmisano, New Orleans, La., for appellants.

C. W. Phillips, Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., for appellees.

Before RIVES, Chief Judge, and CAMERON and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This appeal turns on the scope of appellate review of a district court's discretion in denying a motion for a new trial based on the movant's contention that a verdict of $5,900 in favor of a father and mother is inadequate for the wrongful death of their promising young son. The underlying question is: what are the elements of damages for the wrongful death of a boy of seventeen?

David Silverman was an exceptional boy. He went through all the ranks of air scouting, was a troop leader, and was awarded many merit badges. At fourteen he went to the Scout Jamboree in California and was elected Press Reporter for the Jamboree. At sixteen he had completed Ground Observer Training and was a Squadron Commander in the Shreveport Civil Air Patrol. He held a Federal Communications Commission as a radio-telephone operator. He was graduated with high honors from Fair Park High School in Shreveport, Louisiana. Consolidated-Vultee Aircraft thought enough of young Silverman to give him a four-year scholarship to college; then looked a little further in his record and awarded him a scholarship for an additional two years, conditioned on his doing graduate work in aeronautical engineering at the California Institute of Technology. After completion of the whole six years, Consolidated-Vultee was to employ him as an aeronautical engineer at $960 a month.

In September 1956 David Silverman, seventeen years of age, entered Louisiana State University. Two weeks later he was run over and killed by another student, a young man named Larson.

It is unnecessary to sift the evidence relating to the accident: the issues of negligence and contributory negligence are not before this Court. The accident took place shortly before 11:00 o'clock at night. David Silverman was walking along Nicholson Drive, a four-lane street leading to the campus of Louisiana State University. He was struck from the rear by Larson's automobile. According to the plaintiffs, Larson was passing another car and failed to see Silverman. According to the defendant, young Silverman stepped from the neutral ground directly into the path of Larson's automobile. David Silverman died almost instantly.

David's father, Alexander Silverman, filed suit against Larson for $122,500; his mother sued for $120,000. The case was tried to a jury. After deliberating four hours, the jury awarded David's father $2500 and burial expenses of $943. The jury awarded David's mother $2500. The parents filed a motion to amend the judgment by additur or, in the alternative, for a new trial. This appeal is from the denial of these motions.

Circuit courts review a lower court's ruling on a motion for a new trial, based on inadequacy or excessiveness of the verdict, to determine if the trial judge abused his discretion. 6 Moore, Federal Practice, Section 59.08(6), pp. 3836, 3839-41, nn. 68-72, (2d ed. 1953). Abuse of discretion is an error of law. This Court may review questions of law presented by the ruling of a district court on the motion for a new trial. Southern Farm Bureau Casualty Insurance Company v. Palmer, 5 Cir., 1959, 263 F.2d 206.

In Marsh v. Illinois Central R. Co., 5 Cir., 1949, 175 F.2d 498, 500, Judge Sibley, for this Court, stated: "A motion for a new trial is addressed to the trial judge's discretion. He may grant a new trial if he thinks he has committed error; and he may grant one (and he alone can) because he thinks the verdict is wrong, though supported by some evidence. The exercise of his discretion is not ordinarily reviewable on appeal, though a failure to exercise discretion, or an abuse of it, may be corrected." In Miller v. Tennessee Gas Transmission Co., 5 Cir., 1955, 220 F.2d 434, Judge Rives, quoting from Judge Borah in Commercial Credit Corp. v. Pepper, 5 Cir., 1951, 187 F.2d 71, 75, noted that the term "discretion", when invoked as a guide to judicial action "means a sound discretion, exercised with regard to what is right and in the interests of justice". In Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 914, 919, Judge Rives, for the Court, reviewed the tests that have been applied in determining if there has been an abuse of discretion, and concluded: "When all is said and done, however, the question by its very nature is one for which there can be no rule of thumb answer. Attempts at defining or making more certain and exact the tests of abuse of discretion do not usually furnish reliable guide posts, nor tend to clarify the rule." See also Complete Auto Transit, Inc. v. Floyd, 5 Cir., 1957, 249 F.2d 396, certiorari denied, 356 U.S. 949, 78 S.Ct. 913, 2 L.Ed.2d 843.

To show an abuse of discretion by the trial judge, appellants cite Louisiana cases in which the appellate court affirmed a larger verdict than the jury awarded in the instant case. But federal juries are not bound by the amounts Louisiana juries and Louisiana courts have awarded for wrongful death.¹ Each federal jury determines the facts in the case before it and, under the Seventh Amendment, the jury's verdict cannot be re-examined; although the district court, in its discretion, may set aside the verdict and grant a new trial. Southern Farm Bureau Casualty Insurance Company v. Palmer, supra. However, the right of recovery for wrongful death and the elements of damages to be considered by the jury in its verdict and by the district court in the exercise of its discretion to grant a new trial are determined by Louisiana law.

In the common law there was no right of action for wrongful death. All the states however now allow a statutory right of action for wrongful death. Most of them follow Lord Campbell's Act, 9 & 10 Vict. c. 93 (1846), in that the statutes are not to remedy the wrong done to the decedent but rather for the exclusive benefit of designated beneficiaries. Harper & James, Torts, Section 24.1, Section 25.14 (1956); Prosser, Torts, Section 105 et seq. (2d ed. 1955). In early Louisiana law, as in the common law, there was no right of action for wrongful death,² but by amendments to Article 2315 of the Civil Code the Louisiana legislature established first a survival action and later a wrongful death action.³

Article 2315 of the Louisiana Civil Code does not limit the amount of damages recoverable nor restrict the elements of damages to be considered. "The damages recoverable are neither defined nor restricted, and it is left to the courts to determine both the nature and quantum of damages recoverable under the statute." Bourdier v. Louisiana Western R. Co., 1913, 133 La. 50, 52, 62 So. 348. Louisiana courts recognize as proper elements of damages not only loss of support, loss of contributions, from the decedent, but also loss of society and the grief and anguish of the beneficiaries.⁴ In Kaough v. Hadley, La.App.1936, 165 So. 748, 752, the court stated that in determining the quantum of damages for the death of a minor child "age, contributions, affiliation, domestic association, and prospective helpfulness all enter into the sum total". In addition, "the suffering of a minor child is heritable and properly recoverable in an action of this character". But "no yardstick for the estimation of damages to the parent or parents for the death of a minor child is available, and * * * every case * * * must stand upon its peculiar facts or circumstances".

In this case Silverman's death was instantaneous. There is no element therefore of conscious pain and suffering heritable by his parents. In Kimbell v. Homer Compress & Mfg. Co., 1903, 109 La. 963, 967, 34 So. 39, a boy nineteen years old, a day laborer installing a heavy boiler, was killed instantly when the boiler rolled from its cribbing, crushing his skull against the wall of the boiler-house. The Court held that the parents had no heritable claim for pain and suffering, because of their child's instant death. See also Clements v. Louisiana Elec. Light Co., 1892, 44 La.Ann. 692, 11 So. 51, 16 L.R.A. 43.

There is no showing that Silverman gave any financial help to his parents. Contribution to the support of the parents is therefore not an element of damages here. In Bradford v. Wertz, La. App.1951, 52 So.2d 47 the court allowed $3,000 to each parent for the loss of love and affection of a son who was killed in an automobile accident but, on the showing that the son was about to be married, and therefore not likely to contribute to his parents, the court allowed only funeral expenses of $450 for the financial loss to the parents. See also Blackburn v. Louisiana Ry. & Nav. Co., 1911, 128 La. 319, 54 So. 865; Brown v. Wertz, 1951, La.Ct.App., 52 So.2d 54; Thibodaux v. Culotta, La.App.1939, 192 So. 712; Edwards v. Texas & P. R. Co., 1938, La. App., 185 So. 111; Williams v. Brown, La.App., 1937, 181 So. 679.

Counsel for the Silvermans now contends that as a matter of law the award was inadequate in failing to consider the future help and the future support from David even though David was not contributing to the family budget at the time of his death. These are speculative elements which may not be taken into account by the jury. They are the "speculative damages" the court referred to in its charge and instructed the jury to disregard. Counsel for the plaintiff made no objection to the trial judge's omission in the charge of any direct reference to future support and, in counsel's requested instructions, he did not list future support as an element for the jury to consider. Since there...