Williams v. Nichols, 7785.

Decision Date10 April 1959
Docket NumberNo. 7785.,7785.
Citation266 F.2d 389
PartiesShelby V. WILLIAMS and Horney Livestock, Incorporated, Appellants, v. Joseph E. NICHOLS, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

John L. Walker and John H. Thornton, Jr., Roanoke, Va. (Woods, Rogers, Muse & Walker, Roanoke, Va., on the brief), for appellants.

Evans B. Jessee and Arthur E. Smith, Roanoke, Va., for appellee.

Before HAYNSWORTH, Circuit Judge, and PAUL and BOREMAN, District Judges.

BOREMAN, District Judge.

This appeal pertains to an action for personal injuries in the District Court for the Western District of Virginia, wherein liability was admitted and the only issue for determination by the jury was the amount of damages. The jury awarded the plaintiff damages in the amount of $35,000. The defendants thereupon moved to set aside the verdict and grant a new trial or, in the alternative, for a remittitur. The District Court denied the defendants' motion and entered judgment for the plaintiff on the jury's verdict, from which action of the Court the defendants now appeal.

In their motion to set aside the verdict and to grant a new trial, the contentions of the defendants were in substance and effect as follows: That the verdict was excessive, the award of $35,000 being contrary to the weight of the evidence; that the defendants were, under the circumstances, improperly forced into the trial of the case when their motion for a continuance was denied; and that the trial judge erred when he referred to $75,000, the amount sued for, in his charge to the jury, thereby inviting an excessive verdict.

The last contention has not been urged by the appellants before this court, their counsel expressly stating in oral argument that the point had been abandoned. We will, in passing, note that the reference by the judge, in the charge to the jury, to the amount for which action is brought has been the subject of some judicial disapprobation. It has been held that such reference by the Court to a specific amount is totally unnecessary, may unduly impress that figure upon the minds of the jurors immediately prior to their retiring to deliberate and may be construed as an indication of the judge's opinion as to the proper amount of damages. See Botta v. Brunner, 1958, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331, and authorities therein cited. However, there is authority to the effect that such instruction does not constitute reversible error when the elements of damages have been otherwise properly defined in the charge. See Chesapeake & O. Ry. Co. v. Carnahan, 1915, 118 Va. 46, 86 S.E. 863, affirmed 1916, 241 U.S. 241, 36 S.Ct. 594, 60 L.Ed. 979; Newport News Pub. Co. v. Beaumeister, 1906, 104 Va. 744, 52 S.E. 627; Keathley v. Chesapeake & O. Ry. Co., 1919, 85 W.Va. 173, 102 S.E. 244. See also Hoffschlaeger Co. v. Fraga, 9 Cir., 1923, 290 F. 146.

Appellants contend that the trial court erred in refusing to grant their motion for a continuance and that such refusal contributed to the excessive verdict. The facts in this connection are as follows: The defendants' only witness was Dr. Reverdy H. Jones, who had examined the plaintiff on two occasions, at defendants' request, and had been advised of the date set for trial. Counsel for defendants made no effort to summon Dr. Jones as a witness until approximately one week before the trial date and, when such attempt was made, it was discovered that Dr. Jones was out of the jurisdiction on vacation. Only three days before the date set for trial, defendants' counsel notified the Court of the unavailability of Dr. Jones as a witness and moved for a continuance. Counsel for the plaintiff knew that Dr. Jones had prepared a written report of his examination of the plaintiff and proposed that such written report might be read to the jury as evidence without objection on their part, thus waiving their right to cross-examination. The Court then indicated that it would deny the motion for a continuance. While there is dispute as to whether the defendants were satisfied with that proposed procedure, they made no objection on the record and elected to proceed with the trial rather than to stand on their motion. In fact, none of the discussion or occurrences with respect to the motion for continuance was transcribed for the record. The report of Dr. Jones was read to the jury as evidence and, now that the defendants are disappointed with the amount of the verdict, they choose to label as prejudicial error that to which they, at least impliedly, agreed. It appears that the defendants are in no position to thus complain at this stage. In fact, even if they were in such position, it would be very difficult to determine whether the absence of Dr. Jones and the reading of his report in lieu of his oral testimony was detrimental or beneficial to the defendants. Under the method pursued, there was no opportunity for the plaintiff to cross-examine the doctor and his report stood as direct and positive evidence. Had Dr. Jones been exposed to cross-examination, it is possible that his testimony might have been weakened or even completely discredited in the minds of the jurors. Under the circumstances, we find no error in the exercise of the trial court's discretion in refusing to grant the motion for a continuance.

Defendants contend that the denial of their motion for a continuance was particularly harmful in view of the fact that the testimony of Dr. Bailey, plaintiff's witness, was more favorable to the plaintiff than the defendants had been led to believe from Dr. Bailey's written report and oral report to defendants' counsel prior to the trial. We find no merit in this contention. It could not properly be urged that this circumstance, in itself, constituted reversible error in view of the fact that there was no objection or indication of surprise at the trial, nor was Dr. Bailey's report even used on cross-examination to contradict his direct testimony. Indeed, there is no evidence in the record of the content of said pretrial written or oral report by Dr. Bailey.

There remains a contention by the appellants that the trial court erred in denying their motion for a new trial on the ground of excessiveness of the verdict. It seems perfectly clear that a motion for a new trial in a Federal Court is addressed to the sound discretion of the trial judge and his action thereon is not reviewable as to an error of fact except in a case of clear abuse of discretion or in the most exceptional circumstances. Turner v. United States, 6 Cir., 1956, 229 F.2d 944; Daffinrud v. United States, 7 Cir., 1944, 145 F.2d 724; Aetna Cas. & Sur. Co. v. Yeatts, 4 Cir., 1941, 122 F.2d 350; General American Life Ins. Co. v. Central Nat. Bank of Cleveland, 6 Cir., 1943, 136 F.2d 821, 823 (dictum).

However, the reluctance to disturb the action of a District Court upon a motion for a new trial for error of fact does not exist where the error is one of law. General American Life Ins. Co. v. Central Nat. Bank of Cleveland, supra; Youdan v. Majestic Hotel Management Corp., 7 Cir., 1942, 125 F.2d 15. In other words, so long as the trial judge has committed no error of law in passing upon such a motion, his action will not normally be disturbed.

Apparently the trial judge has, in this case, committed an error of law in that he has applied the wrong standard in his consideration and disposition of defendants' motion. The approach of the trial court is clearly shown by the following statement in his memorandum decision:

"The jury having found a verdict for the plaintiff, the Court, in passing on the motion, must consider the evidence most favorable to the plaintiff and, considering the evidence in this light, the Court is of the opinion that the defendant\'s motion should be denied." (Emphasis supplied.)

That the trial judge considered the evidence in the light most favorable to the plaintiff is disclosed by the recital, in the memorandum decision, of the facts pertinent to the nature, extent and duration of the plaintiff's injuries. Under the heading, "Excessive Verdict", we find the following in the memorandum decision:

"The plaintiff was an able bodied, hard working man 53 years of age earning $1.60 per hour. Since the accident he had lost 8 to 10 pounds, is in constant pain, suffers constantly from severe headaches, is highly nervous and, although he is still working, he is unable to do his normal duties and his doctor is of the opinion that he should not be working at all. While he is only 53 years old, his
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