Young v. International Paper Company

• Decision Date: 16 September 1963
• Docket Number: No. 8923.,8923.
• Citation: 322 F.2d 820
• Parties: H. L. YOUNG and Charles N. Ingram, Plaintiffs, Appellees, v. INTERNATIONAL PAPER COMPANY, Defendant and Third-Party Plaintiff; DICKERSON, INCORPORATED, Third-Party Defendant and Third-Party Plaintiff; PHOENIX INDEMNITY COMPANY, Third-Party Defendant; PHOENIX ASSURANCE COMPANY OF NEW YORK (Named above as Phoenix Indemnity Company), Third-Party Plaintiff; and L. H. SIMKINS, Third-Party Defendant, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

322 F.2d 820 (1963)

H. L. YOUNG and Charles N. Ingram, Plaintiffs, Appellees, v. INTERNATIONAL PAPER COMPANY, Defendant and Third-Party Plaintiff; DICKERSON, INCORPORATED, Third-Party Defendant and Third-Party Plaintiff; PHOENIX INDEMNITY COMPANY, Third-Party Defendant; PHOENIX ASSURANCE COMPANY OF NEW YORK (Named above as Phoenix Indemnity Company), Third-Party Plaintiff; and L. H. SIMKINS, Third-Party Defendant, Appellants.

No. 8923.

United States Court of Appeals Fourth Circuit.

Argued June 14, 1963.

Decided September 16, 1963.

Coming B. Gibbs and Charles H. Gibbs, Charleston, S. C. (Joseph R. Young, Hagood, Rivers & Young, Robert McC. Figg, Jr., Gedney M. Howe, Jr., Charleston, S. C., Gwinn H. Nixon, Cumming, Nixon, Eve, Waller & Capers, Augusta, Ga., and Sinkler, Gibbs & Simons, Charleston, S. C., on brief), for appellants.

D. Laurence McIntosh, Florence, S. C. (Jack J. Wright, Wright, Scott, Blackwell & Powers, Florence, S. C., Harold A. Mouzon, B. Allston Moore, and Moore & Mouzon, Charleston, S. C., on brief), for appellees.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and WINTER, District Judge.

SOBELOFF, Chief Judge.

This is an appeal in a diversity suit instituted in the Eastern District of South Carolina. Plaintiff-appellees own a 10,000 acre tract of timber land in Georgetown County, South Carolina. In 1954 they granted International Paper Company, one of the defendants, an easement for the construction and use of a right-of-way across this tract. Involved in this litigation is the following provision embodied in the grant of the easement:

"It is understood and agreed between the parties hereto that if, in the exercise of the rights and privileges herein granted, the grantee should cause any damage to the land or timber of the grantors, the grantee shall be liable for all such damage regardless of whether such damage is caused by the negligence or wantonness of the grantee. It is understood that the consideration herein mentioned $4,000 is in no wise compensation for any such damage." (Emphasis added.)

On March 1, 1955, a severe fire broke out on plaintiffs' tract; it ultimately destroyed some 5,000 acres of timber land in the heart of the tract on both sides of the right-of-way. Some of the land, according to testimony in the record, was so badly scorched as to become unfit for the production of timber. There was conflict on the evidence as to whether the fire originated from work being done on the right-of-way. The amended complaint was based on the indemnity provision in the easement document, and consequently there is no issue of negligence in the case. Actual damages of $95,000 were sought.

When the litigation, which was unavoidably protracted, finally came to trial on February 1, 1962, two basic questions were involved: (1) Whether the fire of March 1, 1955, originated from work being performed in the right-of-way, and (2) if so, what was the amount of the plaintiffs' damages. The jury returned a verdict for the plaintiffs in the amount of $25,000. The plaintiffs moved for a new trial on the ground of inadequacy of the damages, and the District Court ordered a new trial limited to the issue of damages only. The parties then stipulated to submit the matter of damages, and all remaining issues, to the District Judge for a determination by him, without a jury, upon the existing record. By an order filed October 22, 1962, the District Judge awarded the plaintiffs damages in the amount of $60,000.

On this appeal three questions are raised: (1) Did the District Judge abuse his discretion in setting aside the $25,000 verdict on the ground of inadequacy? (2) Did he err in granting a partial new trial limited to the issue of damages? (3) Was an award of $60,000 clearly erroneous? For the reasons to be set forth we decide each of these questions in the negative.

I

"It is * * * well settled * * * that the granting or refusing of a new trial is a matter resting in the sound discretion of the trial judge, and that his action thereon is not reviewable upon appeal, save in the most exceptional circumstances."¹ Equally well settled is the rule that it is within the discretion of the District Court to grant a new trial for inadequacy or excessiveness of the verdict.²

In the present case there has been no showing that the District Court committed an abuse of discretion in ordering a new trial because of the inadequacy of the verdict. Plaintiffs' three expert witnesses on damages showed estimates of $98,395, $87,014 and $85,000 respectively. Defendants' own expert witness testified that $35,750.50 would be required to restore the plaintiffs to their original property status. The jury returned a verdict in the amount of $25,000, or approximately $5.00 an acre, an amount even below the estimate of the defendants' expert witness. The defendants argue that the jury's verdict was probably based upon the fact that the plaintiffs, in a transaction among themselves, had used a valuation of $5.00 per acre. This apparently dealt with a special situation covering only 80 acres of timber. In view of the entire record, including the expert testimony, it was not arbitrary for the District Judge to reject such valuation as a basis for damages in this suit and to set aside the verdict as inadequate.

II

Not only has a trial judge the power to order a new trial for inadequacy of a jury's verdict, but it lies within his discretion to grant a new trial on either "all or part of the issues * * * in an action in which there has been a trial by jury * * *." Rule 59(a) Fed.R. Civ.P. But a new trial on less than all of the issues is proper only where the issues to be retried are separate from the rest of the case. Atlantic Coast Line R. R. Co. v. Bennett, 251 F.2d 934, 938 (4th Cir., 1958).

In other instances, this court has held that issues of liability and damages may be separate. Mason v. Mathiasen Tanker Industries, Inc., 298 F.2d 28, 32-33 (4th Cir.), cert. denied, 371 U.S. 828, 83 S.Ct. 23, 9 L.Ed.2d 66 (1962). The issue of liability in this case was limited to the question whether the fire originated from the defendants' activities in the exercise of the easement. Once that was determined the remaining question of damages was, on the face of the matter, entirely independent. But the defendants maintain that in the situation presented the two issues are inextricably interwoven. They contend that the jury verdict was the product of an illegal compromise or of "jury bargaining"; that the jury did not really find liability; that rather, to secure a verdict, it lumped the liability and damages questions together and its members then entered into a compromise resulting in a low verdict against the defendants. Such jury practice is widely disapproved.³ This court has held...