Werthan Bag Corp. v. Agnew, 11578

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: SIMONS, , and MARTIN and MILLER, Circuit
• Citation: Werthan Bag Corp. v. Agnew, 202 F.2d 119 (6th Cir. 1953)
• Decision Date: 04 February 1953
• Docket Number: No. 11578,11581.,11578
• Parties: WERTHAN BAG CORP. v. AGNEW. AGNEW v. WERTHAN BAG CORP.

202 F.2d 119 (1953)

WERTHAN BAG CORP. v. AGNEW.

AGNEW v. WERTHAN BAG CORP.

Nos. 11578, 11581.

United States Court of Appeals Sixth Circuit.

February 4, 1953.

Emmett W. Braden and Thomas R. Prewitt, Memphis, Tenn. (Armstrong, McCadden, Allen, Braden & Goodman, Memphis, Tenn., on the brief), for Werthan Bag Corp.

W. Vincent Beal, Memphis, Tenn. (Walter Chandler and Chandler, Shepherd, Heiskell & Williams, Memphis, Tenn., on the brief), for Eugene W. Agnew and Mrs. Eugene W. Agnew.

Before SIMONS, Chief Judge, and MARTIN and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

The Werthan Bag Corporation has appealed from a judgment for $42,500, entered on the verdict of a jury in favor of Eugene W. Agnew as damages for personal injuries inflicted upon him as the proximate result of the negligent operation of appellant's truck at a point in the State of Arkansas.

Mrs. Eugene W. Agnew, wife of the injured man, has appealed from the dismissal of an action brought by her against the Werthan Bag Corporation for loss of the consortium of her husband in consequence of the serious and permanent injuries sustained by him through the aforementioned negligence of the Werthan Bag Corporation.

The respective actions of the husband and the wife were tried together in the United States District Court, but will be considered separately on this appeal.

Werthan Bag Corporation does not challenge its liability to the appellee, there being concededly substantial evidence to support the verdict of the jury which obviously resolved the contested issues pertaining to liability in favor of Agnew. Evidence was adduced that, after appellee had brought his automobile to a full stop behind a large gasoline truck which had stopped at a road barricade, the truck of appellant negligently crashed into the rear portion of his car and knocked it into the gasoline truck, all three vehicles being headed in a westwardly direction on a United States Highway some ten miles west of Forrest City, Arkansas. The only two errors assigned by appellant relate to the damages awarded.

(a) Appellant charges that evidence introduced by Agnew concerning the amount of earnings lost by him by reason of a bonus based on a competitive scale was incompetent and prejudicial. It is pointed out that the only basis upon which appellee attempted to estimate such loss was the difference between the relative position in salesmanship on his employer's rating list attained by him in 1949, namely thirteenth, and the position which he actually attained in 1950 (the year of the accident), which was twenty-fifth. It is said that such evidence is speculative, uncertain and contingent, and could not properly be made the basis of any recovery. Cited by appellant are the opinions in Sumlin v. Woodson, 1947, 211 Ark. 214, 199 S.W.2d 936; Richmond & D. R. Co. v. Elliott, 149 U.S. 266, 13 S.Ct. 837, 37 L.Ed. 728; and Schwartz v. Eitel, 7 Cir., 132 F. 2d 760. The point is not significant, as the item amounted to only $500, and the jury awarded appellee $42,500 damages. The cases cited by appellant are distinguishable from that at bar. The cited Arkansas case held that there can be no recovery of damages in an unlawful detainer action for loss of profits, where it is uncertain or speculative whether there would have been any profits from the operation of a grocery store. The Supreme Court of Arkansas reasoned that, to obtain a recovery of anticipated profits, the plaintiff must present a reasonable set of figures and not leave the jury to speculate upon the question of whether there would have been any profits at all. In the United States Supreme Court case, it was merely held erroneous to permit a railroad switchman to testify concerning his prospects for promotion with resultant higher pay, where his promotion depended upon both the occurrence of a vacancy and the judgment or whim of his employer.

The earnings of appellee as a salesman consisted of a straight salary, a bonus based on sales quotas, and a "Winner's Circle" bonus based on his relative standing with his employer's other salesmen to be determined by sales, administrative ability, merchandising, advertising, handling of correspondence and of company property, and attendance at wholesalers' meetings. To our thinking, the standing of appellee in the Winner's Circle in previous years, along with his standing for 1950 during which he was totally incapacitated for five months, considered together with the proof of record in reference to his earning capacity, was competent to be considered by the jury in estimating his earnings lost in consequence of the injuries sustained by him. A few decisions supporting the admissibility of the challenged evidence may be cited. Hines v. Patterson, 146 Ark. 367, 225 S.W. 642; A. L. Clark Lumber Co. v. St. Coner, 97 Ark. 358, 133 S.W. 1132; Midland Valley R. R. Co. v. Hoffman Coal Co., 91 Ark. 180, 120 S.W. 380. A good illustrative case is Phoenix Baking Company v. Vaught, 1945, 62 Ariz. 222, 156 P. 2d 725, wherein it was held and authorities were cited to the effect that the past performance of an injured person, together with bonuses and commissions earned by him in the past, may be considered by the jury in assessing his damages for loss of earnings. At the trial, appellant was apparently unimpressed with the importance of excluding the evidence now complained of, inasmuch as no motion to have it stricken from the record appears to have been made and no special instructions concerning its effect were requested.

(b) Appellant contends that the trial judge failed to perform his duty and abused his discretion when considering its motion for a new trial, "by refusing to weigh the evidence and in applying test that verdict of jury must stand if supported by substantial evidence." Appellant insists that, in considering a motion for new trial, the trial judge is required to weigh the evidence; and that his failure to do so requires a reversal and a remand for trial on the issue of damages alone, pursuant to the practice adopted in Thompson v. Camp, 6 Cir., 1948, 167 F.2d 733.

Four opinions of this court are cited by the appellant among the authorities which it asserts sustain its position. Mt. Adams & E. P. Inclined Ry. Co. v. Lowery, 6 Cir., 74 F. 463; Felton v. Spiro, 6 Cir., 78 F. 576; Big Brushy Coal & Coke Co. v. Williams, 6 Cir., 176 F. 529; Lake Erie & W. R. Co. v. Schneider, 6 Cir., 257 F. 675.

In Felton v. Spiro, supra 78 F. 581, Chief Justice Taft, then a member of this court, wrote an instructive opinion upon the subject matter making it clear that it is the duty of the trial judge "to consider whether the verdict was against the great weight of the evidence" and that, if he refuses to consider the evidence in this light "on the ground that he has no power or discretion to do so", he deprives the movant of a substantial right and his judgment may be corrected by writ of error. The judgment of the trial court was reversed and the cause remanded, with instructions to the trial judge to consider and pass upon the motion for a new trial in so far as it was based on the ground that the verdict was against the weight of the evidence. The opinion stated: "This reversal does not set aside the verdict. It only remands the cause for further proceedings from the point where the error was committed. We found no error in the action of the court upon the trial and before verdict, and hence we shall not disturb it, but shall leave it to the trial court, upon consideration of the weight of the evidence, to grant the motion for new trial, or not, as in its discretion it may deem proper." Judge Taft stated that it is so well settled as to need no citation of authority that a motion for a new trial is addressed to the discretion of the court and "if the court exercises its discretion, and either grants or denies the motion, its action is not the subject of review." 78 F. 581.

Appellant gives recognition to the rule as well settled that the question of excessiveness of a jury verdict in award of damages is primarily for the trial court and is not reviewable on appeal in the absence of abuse of discretion. But it is insisted that the trial judge in the instant case, in hearing the motion for a new trial, failed to exercise any discretion, inasmuch as he applied the test applicable to an appellate court and, therefore, abused his discretion in leaving the issue of excessiveness of the verdict open for review in the court of appeals. The opinion of Judge Parker in Virginian R. R. Co. v. Armentrout, 4 Cir., 1948, 166 F.2d 400, 408, is stressed as authority.

The appellee responds that appellant has created an issue which is not supported by the record, in that it has lifted out of text and attributed to the language of the district judge a meaning which was not intended. The issue to which the judge addressed his comment was the excessiveness of the verdict, and his remarks applied solely to the question of whether the verdict should be set aside or reduced for excessiveness. It is, therefore, important to examine the record to see just what was said by the trial judge.

In the oral argument upon the motion for new trial, appellant's attorney argued that the verdict was so excessive as to evince passion and prejudice on the part of the jury. He stated that he believed the verdict to be so far out of line that the judge should step in and exercise the right which the law gave him "as the thirteenth juror." The judge interrupted to say: "No, I am not the thirteenth juror." The attorney, then admitted: "Well, maybe I am talking out of turn." The judge continued: "It is different in the Federal court. It is a question of whether or not there is substantial evidence here, and not like the State practice Tennessee. I am not the thirteenth juror, and it is not necessary for me to approve or disapprove a verdict on the record." This was a correct statement of law, for, though it has long been the rule in...