Whiteman v. Pitrie

• Decision Date: 22 March 1955
• Docket Number: No. 15266.,15266.
• Citation: 220 F.2d 914
• Parties: George W. WHITEMAN, Appellant, v. Elsoyd PITRIE, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

220 F.2d 914 (1955)

George W. WHITEMAN, Appellant, v. Elsoyd PITRIE, Appellee.

No. 15266.

United States Court of Appeals, Fifth Circuit.

March 22, 1955.

Thomas B. Wheeler, McClendon & Wheeler, New Orleans, La., for appellant.

Amos L. Ponder, Jr., New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

RIVES, Circuit Judge.

Appellee, plaintiff below, complained that while he was working for appellant, defendant below, as a deckhand on a tug engaged in shifting barges, he sustained a broken arm as a result of negligence of the defendant and of defendant's failure to furnish him a safe place in which to work. Inland Waterways Corporation was the owner of the barge on which plaintiff was injured.

Three suits were filed on account of the accident. The first, Civil Action No. 3225, the subject of this appeal, was brought by the plaintiff under the Jones Act.¹ The appellant, defendant in the first action, filed a contingent action against Inland Waterways Corporation, being No. 2191 in Admiralty, for reimbursement of any judgment that might be rendered against him in the first action. A jury trial was asked in the first case, but in the second case a jury trial could not be had because the defendant corporation was entirely owned by the United States. Considerably later, the third suit, not here involved, was instituted, a direct action in admiralty by plaintiff, appellee, against Inland Waterways Corporation, in which defendant, appellant, was impleaded under the 56th Admiralty Rule, being No. 2290 in Admiralty.

A motion to consolidate the first and second cases was denied. It was, however, stipulated that the record on the jury trial of the first case could be used in the trial of the contingent libel at a later date. Certain written interrogatories were propounded by the defendant to the plaintiff which had not been answered at the time of trial.

The accident complained of was witnessed only by appellee. According to his testimony, it resulted from a defective winch, the dog or pawl on which gave way when he attempted to insert a crank in the winch to slack off a line. The crank struck his right arm breaking it in two places. The only person who saw the winch immediately after the accident was appellee's fellow deckhand, Labauve, who testified that he found the winch to be defective.² An inspector of the Federal Barge Line testified that, on the day after the injury, he examined the winch and found nothing wrong with it except a broken cable. A Marine surveyor testified that two days after the injury, he found three of the winches in that end of the barge intact and in operating condition, but the one on the port bow defective in that the brake did not work. The appellee and the witness, Labauve, each referred in their testimony to the starboard winch as being the one used, though the appellant held to a different opinion.³

The trial was had nearly three years after the injury. Plaintiff's arms and their relative movements were exhibited to the jury. Though he was righthanded, his right arm had become considerably smaller than his left. The plaintiff was totally unable to work for 6½ months after his injury but he was paid his wages during that time. His medical and hospital bills were also paid. He came back to work as an engineer, a better paying job. He testified: "Q. In other words, from the financial standpoint up to now, it hasn't really cost you anything, has it? A. No, sir." He further testified that he had only a third grade education, that the only engines he knew or had worked on were those of the defendant, that he was not qualified to be an engineer on other type Diesel engines, and that he felt that he would no longer be able to do the kind of manual labor or to hold the jobs for which he was qualified.

Two physicians testified as to the extent of his injuries, one introduced by the plaintiff and the other by the defendant. Their opinions did not materially differ. The physician introduced by defendant testified that one fracture extended into the wrist joint, and that a painful traumatic arthritis had resulted; he thought that the plaintiff had suffered a twenty-five to thirty percent permanent loss of the use of his right arm.

The court, after an able charge, to which no exceptions were reserved, submitted to the jury eight questions upon which the jury returned the following verdict:

"Question 1: Was the winch defective? Yes.

"Question 2: If so, was that defect a proximate cause of the plaintiff\'s injury? Yes.

"Question 3: Was the defendant guilty of negligence? Yes.

"Question 4: If so, was the negligence of defendant a proximate cause of the plaintiff\'s injury? Yes.

"Question 5: Was the plaintiff negligent? No.

"Question 6: If so, was his negligence a proximate cause of his injury? No.

"Question 7: If you find that the plaintiff was negligent and that his negligence was a proximate cause of his injuries, to what extent percentagewise did his negligence contribute to his injury? None.

"Question 8: We, the jury find the plaintiff\'s damages to be in the amount of $30,000.00.

"(Signed) Marion G. Faulkner Foreman."

Judgment was entered upon the jury's verdict, the defendant's motion for new trial "and for a reduction of award and remittitur" was denied, and this appeal ensued. Appellant makes five specifications of error which we consider in their order.

Specification of Error I: "The Court below erred in denying Appellant's motion to consolidate Civil Action No. 3225 with No. 2191 in Admiralty."

I. Rule 42(a), Fed.Rules Civ. Proc.⁴ providing for the consolidation of actions, is permissive and vests a purely discretionary power in the district court. "An exercise of such power may be reviewed on appeal from a final judgment or order but will not be disturbed except for abuse of discretion." 5 Moore's Federal Practice, 2nd ed., Para. 42.02, p. 1204. We find no abuse of discretion in denying the motion to consolidate the jury case with the non-jury case. Further, there is nothing in the record to show that the defendant was injured by the refusal to consolidate.

Specification of Error II: "The Court below erred in allowing the case to go to trial before Appellant's interrogatories had been answered."

II. In the absence of any motion for continuance, objection to trial before the interrogatories were answered, or of any demand for such answers, the second specification does not merit discussion. Further, of course, if the district court had exercised its discretion in refusing to stay the proceedings such exercise would not be disturbed on appeal unless there had been an abuse of discretion. 53 Am.Jur., Trial, Sec. 15.

Specification of Error III: "The jury erred in finding that Appellant was negligent."

Specification of Error IV: "The Court erred in not granting a new trial."

III and IV. There was no motion for a directed verdict, and the third specification may be shortly answered by saying that we are without power to consider directly whether "the jury erred." 5 Moore's Federal Practice, 2nd ed., Para. 50.05(1), pp. 2322, 2323. As to the fourth specification, it is sometimes said that error cannot be assigned in not granting a new trial, but that is inaccurate. While the Seventh Amendment forbids the power to this Court to re-examine the facts found by a jury otherwise than according to the rules of the common law, it does not prevent this Court from reviewing the questions of law presented by the decision of the trial court on the motion for new trial. When the trial court abuses its discretion, that amounts to a legal error and may be reviewed as such. Virginian Ry. Co. v. Armentrant, 4 Cir., 166 F.2d 400, 407, 408, 4 A.L.R.2d 1064; 6 Moore's Federal Practice, 2nd ed., Para. 59.08(6), p. 3827, Notes 29 & 30.

"* * * the grant or denial of a motion for new trial is not reviewable, except where the trial court acts under the compulsion of a mistake or law, or lacks power to grant the motion, as where the motion is not timely, or where the trial court fails to exercise its discretion, or where it abuses its discretion. And a motion for new trial on the ground that the verdict is against the weight of the evidence and the trial court\'s ruling thereon are within the foregoing principles." 6 Moore\'s Federal Practice, 2nd ed., Para. 59.08(5), p. 3816.

One of the leading authorities for the proposition that the denial of a motion for new trial is reviewable where the trial court fails to exercise its discretion is Marsh v. Illinois Cent. R. Co., 175 F.2d 498, 500, where this Court said:

"A motion for 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."

It was well said by Judge Borah, speaking for this Court, in Commercial Credit Corporation v. Pepper, 187 F.2d 71, 75, 76:

"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."

When should an Appellate Court reverse the district court for abuse of discretion in the denial of a motion for new trial, which was based on the ground that the...