New Orleans & N. E. R. v. Snelgrove

^* Corpus Juris-Cyc. References: Constitutional Law, 12CJ, p. 1239, n. 79; Death, 17VJ, p. 1350, n. 6. As to excessiveness of verdict in actions for personal injuries resulting in death, see annotations in L.R.A. 1915F, 30; 48 A.L.R. 817. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] There was a verdict and judgment in this case for the sum of fifty thousand dollars.

We are of opinion that no reversible error occurred in the trial of the cause, except the action of the court in overruling appellant's motion for a new trial upon the ground that the verdict was excessive. The verdict is so large that, in our opinion, it was the result of passion or prejudice on the part of the jury. Viewing under the evidence the conscious pain and suffering endured by the deceased, in connection with the pecuniary loss suffered by his dependents on account of his death, in the most favorable light to them, we think twenty-seven thousand five hundred dollars would be full compensation therefor. Any sum above that amount, under the undisputed facts of this case, it seems would be shocking to the nelightened conscience.

Unless the appellee shall, within ten days after this opinion goes down, enter a remittitur in the sum of twenty-two thousand five hundred dollars, the judgment will be reversed, and the cause remanded for a new trial on the question of damages alone. On the other hand, if such remittitur is entered, the judgment will be affirmed, as so reduced.

Affirmed, with remittitur; otherwise, reversed.

ON SUGGESTION OF ERROR. One of the grounds of appellant's suggestion of error is that, the court having held that the verdict of the jury was the result of passion or prejudice, the failure of the court to reverse the entire judgment and remand the cause for another trial, on both the question of liability and the question of damages, amounts to a denial to appellant of due process of law and equal protection of the law, in violation of the Fourteenth Amendment to the Federal Constitution. Appellant's position is that, the jury having been swayed by passion or prejudice in fixing the amount of their verdict, they were necessarily likewise influenced in determining the question of liability, and it follows that the verdict and judgment both are the result of passion or prejudice on the part of the jury, and that such a verdict and judgment deny to appellant due process and the equal protection of the law, in violation of the Fourteenth Amendment to the Federal Constitution.

We do not think appellant's position is sound. The question of liability and the question of damages are two separate, distinct, issues. It is reasonably conceivable that the jury might have approached the question of liability with entire impartiality, and decided that issue according to the law and the evidence, and, on the other hand, when they reached the question of damages to be awarded, were unduly influenced by the extreme suffering of the deceased and sympathy for his wife and children on account of their loss. And this view is borne out by the record in this case. There was ample evidence to support the finding of the jury on the question of liability. There is nothing to show that, in determining that question, the jury were influenced by any other consideration than the evidence and the governing principles of law. On the other hand, from a consideration of all the elements of damages the jury were authorized to take into account in fixing the amount of their verdict, it is manifest that the verdict is so large that it could not have been the result of anything except passion or prejudice, or undue influence, which amounts to the same thing.

Appellant refers to the case of Railroad Co. v. Ferebee,238 U.S. 269, 35 S.Ct. 781, 59 L.Ed. 1303, as adversely criticizing the practice of reversing cases to be retried upon questions of damages only. In discussing this question in that case, the supreme court of the United States said in part:

"The jury found for the plaintiff; the amount being somewhat larger than that named in the first verdict. The judgment thereon was affirmed. 167 N.C. 290, 83 S.E. 360. The company then brought the case here by writ of error, in which it contends that it was error for the supreme court to grant a partial new trial, in which the question of damages only could be considered, inasmuch as the Employers' Liability Act entitles the defendant in all cases to prove contributory negligence in mitigation of damages. On the other hand, the defendant in error contends that the question as to whether there should have been a partial new trial was a matter of procedure, to be governed by the practice of the state of North Carolina. But a substantive right or defense arising under the Federal law cannot be lessened or destroyed by a rule of practice. Damages and contributory negligence are so blended and interwoven, and the conduct of the plaintiff at the time of the accident is so important a matter in the assessment of damages, that the instances would be rare in which it would be proper to submit to a jury the question of damages, without also permitting them to consider the conduct of the plaintiff at the time of the injury.

"But this record, in connection with the special finding first verdict, shows that in this case the two matters were in fact separable, so that the splitting up of the issues and granting a partial new trial did not in this particular instance operate to deprive the defendant of a Federal right; for it appears that Ferebee had nothing to do with the loss of the steps and was not guilty of contributory negligence in failing to see that they were missing. His conduct at the time of his fall could not, therefore, affect the amount of the verdict, so that it was possible, on the second trial, to award damages without considering the conduct of the plaintiff, or retrying the question of contributory negligence."

We do not think the practice of partial reversal of judgments in this state comes within the criticism of the supreme court of the United States in that case. Under our practice, when a cause is reversed and remanded, to be retried upon a question of damages alone, all issues having a bearing on that question are retried, including the negligence and contributory negligence of plaintiff and defendant, respectively.

We do not think there is sufficient merit in the other grounds of the suggestion of error to call for a discussion by the court.

Overruled.