Still v. Townsend
| Decision Date | 21 December 1962 |
| Docket Number | No. 14902.,14902. |
| Citation | 311 F.2d 23 |
| Parties | Lela Sue STILL, Plaintiff-Appellant, v. Hazel E. TOWNSEND, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Harold R. Ratcliff, Howard R. Paul, Memphis, Tenn., on the brief, for appellant.
Thomas F. Johnston, Memphis, Tenn., Thomas R. Prewitt, Memphis, Tenn., on the brief, for appellee.
Before MILLER, WEICK and SMITH,* Circuit Judges.
Appellant, who was a passenger in an automobile owned and being driven by the appellee, brought this action, based on alleged negligence on the part of the appellee, to recover damages in the amount of $20,000.00 for personal injuries received when appellee, in backing the automobile, allowed it to collide violently with a utility pole. Jurisdiction was based on diversity of citizenship and the amount in controversy.
Appellee denied negligence on her part and affirmatively alleged that the automobile had defective or inadequate brakes, of which appellant had knowledge before the accident occurred, but that appellant acquiesced in appellee's continued operation of the automobile and made no effort to alight from it, although she had adequate opportunity to do so; that the accident was caused by said defective brakes; and that appellant assumed the risk of injuries suffered in the accident and was further guilty of proximate contributory negligence in continuing to ride in the automobile under the circumstances.
Appellant's evidence showed expenses incurred by her as a result of her injuries in the amount of $1,369.69, consisting of doctors' and hospital bills, drugs, orthopedic appliance, and fifty-three trips from her home in Sardis, Mississippi, to Memphis, Tennessee, which was the closest place where specialized medical attention required by appellant was available, at a cost of $10.00 per trip. This total did not include any item for pain and suffering or impairment of earning capacity for at least forty-six weeks, with respect to which her evidence showed that she was capable of earning $75.00 a week. There was medical testimony that appellant had not recovered from her injuries at the time of the trial. No medical testimony was offered for the defense.
The jury returned a verdict for the appellant in the amount of $1,375.80. Appellant moved for a new trial on the ground that the verdict was grossly inadequate and so grossly inadequate as to evidence passion, prejudice, or unaccountable caprice upon the part of the jury. Shortly thereafter appellant filed an amendment to her motion for a new trial based on the grounds of newly discovered evidence under the provisions of Rule 60(b) (2), Rules of Civil Procedure. The newly discovered evidence was stated as being the diagnosis of her injuries by a qualified neurological surgeon in Jackson, Mississippi, who examined her for the first time after the trial and was of the opinion, not previously expressed by her attending physicians before the trial, that her injury was most serious and productive of permanent disability. It is claimed by appellant that the true gravity of her injuries and disability became apparent and discoverable only after the case was tried.
The motion for a new trial was overruled by the District Judge and this appeal followed. This procedural question under Rule 60(b) (2) is controlled by federal law rather than by state law. Thomas v. Peerless Mattress Company, 284 F.2d 721, 722, C.A.4th; Vassos v. Societa Trans-Oceanica Canopus, etc., 272 F.2d 182, 183, C.A. 2nd; Hicklin v. Edwards, 226 F.2d 410, 412-413, C.A. 8th. See: Stern v. Inter-Mountain Telephone Co., 226 F.2d 409, C.A. 6th.
In Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481, 53 S.Ct. 252, 77 L.Ed. 439, the Supreme Court said:
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Spangler v. McQuitty
...following trial and concluding that finality outweighed claims of inequity in damages awarded. Id. at 136, citing Still v. Townsend, 311 F.2d 23, 23–24 (6th Cir.1962) and Campbell v. American Foreign S.S. Corp., 116 F.2d 926, 928 (2d Cir.1941). The Sixth Circuit reasoned that, [t]he defenda......
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Gault v. Poor Sisters of St. Frances Seraph of Perp. Ador.
...issues in the jury trial as to warrant reversal for new trial is an issue to be decided by the standards of federal law. Still v. Townsend, 311 F.2d 23, 24 (C.A.6, 1962); 6 Moore Federal Practice § 59.04 1 at 3710-11 (2d ed. supp. In the leading federal case, McDonald v. Pless, 238 U.S. 264......
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