Sunray Oil Corporation v. Allbritton

• Citation: 188 F.2d 751
• Decision Date: 26 April 1951
• Docket Number: No. 13148.,13148.
• Parties: SUNRAY OIL CORPORATION, Appellant, v. G. T. ALLBRITTON, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

188 F.2d 751 (1951)

SUNRAY OIL CORPORATION, Appellant, v. G. T. ALLBRITTON, Appellee.

No. 13148.

United States Court of Appeals. Fifth Circuit.

April 26, 1951.

Philip Brin, Longview, Tex., C. E. Bryson, Houston, Tex., Edward Howell, Oklahoma City, Okl., Angus G. Wynne, Longview, Tex., and Gene M. Woodfin, and Ben H. Rice, III, Houston, Tex., for appellant.

J. Edwin Smith and George E. Cire, Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES, McCORD, BORAH and RUSSEL, Circuit Judges.

PER CURIAM.

It is ordered that the petition for rehearing in the above entitled and numbered cause be, and it is hereby denied.

HOLMES and McCORD, Circuit Judges, dissenting.

HUTCHESON, Chief Judge (concurring).

While I concur fully in the order overruling the motion for rehearing, in view of the statement in appellant's motion that the failure of the Court to state its views on the issue of the claimed excessiveness of the verdict has left them in doubt as to their proper course, I have concluded to briefly state my own views.

1. The action of the district judge in refusing to relieve against the verdict as excessive is, unreviewable by this court if the verdict is excessive only in fact, reviewable if it is excessive in law.

2 Whether, in the opinion of the district judge, a verdict is excessive as matter of fact, that is, though not contrary to right reason and, therefore not excessive as matter of law, it is larger in amount than the judge thinks it justly ought to be, or is excessive as matter of law, that is, is so monstrous¹ or inordinate² in amount as to find no support in right reason,³ he has the same power, the same duty, in the one case as in the other to relieve against the excessiveness by granting a new trial or requiring a remittitur in lieu.

3. The power and duty, on the other hand, of the Court of Appeals to relieve against excessiveness in verdicts does not extend to cases where the verdict is excessive merely as matter of fact. Limited as it is by the Seventh Amendment, its power and duty extend only to cases in which the verdict is excessive as matter of law, that is, is so gross or inordinate in amount as to be contrary to right reason.

In such cases the Court of Appeals has the power, and it is its duty, to relieve against excessiveness in law either by reversing the judgment for the error in law of the trial judge in abusing his discretion by not relieving against it, or by requiring a remittitur in lieu of reversal.

In this case I was, and am, of the clear opinion that the verdict is not gross, monstrous, or inodinate, and, therefore, contrary to right reason, and if it is excessive it is not so as matter of law but only as matter of fact. This being so, I was, and am, of the opinion that this court is without power, it has no duty or function, to inquire into the amount of its excessiveness as matter of fact, none to reverse for, or otherwise relieve against, the excessiveness, if any, as matter of fact, in the verdict.

In agreeing, therefore, to affirm the judgment against the attack upon it of the excessiveness of the verdict, I did so without at all intending either to approve or disapprove the amount of the verdict or to consider or determine whether it was or was not excessive as matter of fact or whether it should or should not have been relieved against by the district judge in the exercise of his undoubted power and his equally undoubted duty⁴ to relieve against such excessiveness, if, in his judgment, it was excessive in fact, that is, was larger in amount than he thought it justly ought to be.

HOLMES, Circuit Judge (dissenting).

The majority opinion did not discuss the constitutional question in this case, or the factual issue as to the amount of the verdict being manifestly excessive; but often what a court does is more important than what it says. Sometimes what the courts do speak so loudly that we cannot hear what they say, but that is not what happened here. Obviously, this court determined either that the moderated verdict was not manifestly excessive or that it had no constitutional power to examine the question. Either holding was prejudicially erroneous, the latter for reasons already fully discussed in the dissent, the former for reasons presently to be stated.

The court expressly held that the verdict for $125,000 was infected with error, and lopped therefrom the sum of $13,084.70 without calling on the appellee for a remittitur of that amount. This reduced the verdict and judgment to $111,915.30, which the court let stand. This judicial action necessarily implied a determination that the reduced amount was not manifestly excessive or that, as an appellate federal court, it had no constitutional authority to disturb the modified verdict or to call upon the appellee to remit the excessive portion thereof.

It is generally conceded, though with some play upon words, that federal appellate courts have the power to re-examine any fact tried by jury, for the purpose of ascertaining whether the trial court abused its discretion in denying a new trial. In Crowell-Collier Pub. Co. v. Caldwell, 5 Cir., 170 F.2d 941, at page 944, this court said: "If the verdict in this case were merely excessive in respect both of actual and punitive damages and in respect of the relation between the two, these facts standing alone would not constitute reversible error. But the verdict here was not merely in the ordinary sense an excessive verdict. It was an inordinate one, without precedent or sound legal basis."

In the recent case of Commercial Credit Co. v. Pepper, 5 Cir., 187 F.2d 71, 75, which was tried by a jury but did not involve excessive damages, this court asserted its jurisdiction to review the trial court's ruling upon the motion for a new trial, and reversed the judgment of the district court on the ground that it abused its discretion in refusing to grant a new trial. The court said: "Under the circumstances presented, and quite independent of the error in the charge, we are of opinion that the trial court erred in denying plaintiff's motion for a new trial. It is a principle well recognized in the federal courts that the granting or refusing of a new trial is a matter resting within the discretion of the trial court. The term `discretion', however, 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. And an appellate court is not bound to stay its hand and place its stamp of approval on a case when it feels that injustice may result. Quite to the contrary, it is definitely recognized in numerous decisions that an abuse of discretion is an exception to the rule that the granting or refusing of a new trial is not assignable as error." Citing Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520, and Virginian Ry. Co. v. Armentrout, 4 Cir., 166 F.2d 400, 4 A.L.R.2d 1064.

In the Virginian Railway case, 166 F.2d, at pages 407-409, the court said: "The problem of assessing damages in a case of this sort is one which must be approached with common sense. * * *

"The power and duty of the trial judge to set aside the verdict under such circumstances is well established, the exercise of the power being regarded as not in derogation of the right of trial by jury but one of the historic safeguards of that right. * * *

"The power of this court to reverse the trial court for failure to exercise the power, where such failure, as here, amounts to an abuse of discretion, is likewise clear. * *

"That abuse of discretion in refusing to set aside a verdict is an exception to the rule that the granting or refusing of a new trial is not assignable as error, is definitely recognized in the following decisions: Citing them."

Thus it is apparent that any fact tried by a jury may be re-examined by an appellate federal court for the purpose of ascertaining whether the trial court abused its discretion in refusing to grant a new trial because the jury had abused their discretion in rendering a verdict for manifestly excessive damages. It is also apparent that at common law there was no such circuity of judicial review of a fact tried by jury when they had abused their discretion in rendering a manifestly excessive verdict. The King's Bench, in the exertion of its superintendent powers, re-examined the facts to determine whether the jury had been guilty of an abuse of discretion, apprehending with reason that rendering a verdict for manifestly excessive damages was a principal species of misbehavior by jurors. Lewis' Blackstone, p. 1347 et seq. By Sec. 22 of the Judiciary Act of 1789, federal appellate courts were forbidden to do this; but by Sec. 2106 of the Judiciary Code of 1948, 28 U.S.C.A. they were required to do it, since the 7th Amendment impliedly authorizes the re-examination of any fact tried by a jury except otherwise than in accordance with the rules of the common law. The procedure of striking at the jurors' misbehavior over the shoulders of the trial judge was devised to prevent injustice because of the statutory restriction on appellate power. The old statute having been superseded, the reason for the device has ceased.

In the instant case, the majority may have deemed the moderated verdict manifestly excessive but not to such a degree as to evince bias, prejudice, or passion, on the part of the jury. If so, it was prejudicial error for the court to affirm the judgment unless the appellee remitted the excessive portion thereof. It is also true that the majority may have deemed the moderated verdict manifestly excessive but not to such a degree as to show an abuse of discretion on the part of the trial judge in refusing to grant a new trial unless the plaintiff remitted the excessive portion. Upon the first hypothesis, the court was trying the jury, upon the second, it was trying the district judge, when it should have re-examined the facts tried by the jury,...