RUSSELL, Circuit Judge.
This appeal questions again the propriety of a judge of a Federal Court in Louisiana, in his instructions to the jury trying an action for the recovery of damages for pain, suffering and personal injury, directing the jury to consider, as a guide for its finding, the quantum of damages which may have been awarded by the State Courts in what the Federal Court determines to be somewhat similar cases which have been tried and determined by the judges of the State Courts of Louisiana. In Dowell, Inc., v. Jowers, 5 Cir., 166 F.2d 214, 2 A.L.R.2d 442; Dowell, Inc., v. Jowers, 5 Cir., 182 F.2d 576, and Lumbermens Mutual Casualty Co. v. Hutchins, 5 Cir., 188 F.2d 214, all from the State of Louisiana, we have held such a charge to be erroneous. The confusion resulting from such a charge to the jury was also recognized in Mutual Life Ins. Co. of New York v. Daigle, 5 Cir., 142 F.2d 1000, and, in a case from Mississippi, Wood v. Morrow, 5 Cir., 119 F.2d 776. We could, therefore, well rule
the present case without any further discussion, for the appellant’s contention of error is plainly sustained by these prior decisions. However, since in this, and another case likewise pending before us, State Farm Mutual Automobile Ins. Co. v. Scott, 5 Cir., 198 F.2d 152, but in which the situation is reversed because the trial Judge in that case followed our prior rulings and refused such an instruction, (and likewise refused to permit counsel to argue to the jury the question of quantum in the light of “similar cases” in the State Court), it is contended that in the former cases the point at issue was not fully developed, or all grounds in support of the correctness of such a charge presented, and that there are here material differences in the nature of the Court’s instructions to the jury, which require a different result in this case, we will consider and further briefly discuss the proposition, even though not required to do so.
The instruction of the Court here challenged so portrays the nature of the question and embodies all substantial features of the -appellee’s argument as to why such a charge is proper that we set it forth below.
These, in summary, are that the rule en
forced in the Courts of the State of Louisiana, by which past decisions on .quantum are referred to in subsequent cases as a guide by which a fair standard of damages for particular hurts can be estimated and the uniform practice of such Courts in doing so to secure a reasonable uniformity of awards, declares and constitutes the substantive law of Louisiana, and that’ the Federal Courts, under the doctrine of the
Erie case,
must by their instructions require the jury in the Federal Court to do likewise in order that the outcome of litigation in the Federal Court may he substantially the same, so far as legal rules determine the outcome of the litigation, as it would be if tried in the State Court.
On the other hand, the appellant denies that any such rule prevails in Louisiana. It is contended that Louisiana jurisprudence enforces no such standard for measuring damages for personal injuries; that in practice there are no jury trials on such questions in such cases, but that the trial Courts determine, and the Appellate Courts review, revise and adjudge, such cases and the amount of damages proper therein as a matter of law and fact and that there is no authority indicating that awards made in other cases constitute a part of the law of Louisiana so as to require comparison and control in the adjustment of such damages in other cases.
It is further contended that even in the rare instances of jury trials in the State Courts of Louisiana the law forbids expression upon the facts of the case by the judge in his charge.
The basis of the argument is that the amount of damages to be awarded in a personal injury suit is a question of fact, that the Court should not suggest a proper amount of award, and that the-Court’s instructions which seek to have the jury consider awards in other cases as. guides, as this is admittedly so considered by judges in the Louisiana Courts trying-cases without a jury, effects an abrogation of the right of trial by jury as guaranteed by the Seventh Amendment to the Constitution of the United States.
Upon further consideration of the question we find no -reason authorizing a departure from the rule which we have previously announced which, while not expressly stated, embodies the proposition that such an instruction is not compatible
with the historic function of the jury in fixing in each case the proper award to he made for the injuries sustained and pain and suffering endured in the light of the circumstances of the case then and there being tried and presented to the jury. It is true, as shown by the Louisiana State Courts decisions, that the judges of those Courts with practical uniformity use the determination in previous cases as a guide by which to estimate damages for the particular hurts presently before them for consideration. This is clearly shown 'by the cases cited by the appellee.
However, these cases also recognize that “no hard and fast rule can be laid down for fixing damages in cases of this kind, other cases merely serving as guides.” Wilcox v. B. Olinde & Sons Co., supra, [182 S. 154]. The cases cited by appellant
support the statement that “in Louisiana there is no standard and no monetary measure limiting recovery, statutory or judicial.” In Grissom v. Heard, 47 So.2d 108, 109, the Court of Appeal of Louisiana, says: “The sole issue before us is the quantum to be allowed the plaintiff. In determining that question, there are no set rules for our guidance. Each case must stand on its particular facts, the injuries received and its consequences. However, we do endeavor to maintain some standard of uniformity and consider the ability of the defendant to pay and the decreased purchasing power of the dollar.” The guide which the judges of Louisiana Courts employ is, in effect, the means which they have adopted for determining the fact of quantum. It must be conceded that their adherence to former cases as “guides” as a means of enforcement of uniformity is a matter of law. Nevertheless, quantum is recognized as a question of fact. In the State Courts both of these questions, law and fact, are determined by the judges, who are experienced and able to discriminate and make allowance for factual differentiation. Such procedure, or method of judgment, can not be employed in instructing the jury without violating the well recognized principle which forbids the judge to suggest the proper amount of award.
Free access — add to your briefcase to read the full text and ask questions with AI
RUSSELL, Circuit Judge.
This appeal questions again the propriety of a judge of a Federal Court in Louisiana, in his instructions to the jury trying an action for the recovery of damages for pain, suffering and personal injury, directing the jury to consider, as a guide for its finding, the quantum of damages which may have been awarded by the State Courts in what the Federal Court determines to be somewhat similar cases which have been tried and determined by the judges of the State Courts of Louisiana. In Dowell, Inc., v. Jowers, 5 Cir., 166 F.2d 214, 2 A.L.R.2d 442; Dowell, Inc., v. Jowers, 5 Cir., 182 F.2d 576, and Lumbermens Mutual Casualty Co. v. Hutchins, 5 Cir., 188 F.2d 214, all from the State of Louisiana, we have held such a charge to be erroneous. The confusion resulting from such a charge to the jury was also recognized in Mutual Life Ins. Co. of New York v. Daigle, 5 Cir., 142 F.2d 1000, and, in a case from Mississippi, Wood v. Morrow, 5 Cir., 119 F.2d 776. We could, therefore, well rule
the present case without any further discussion, for the appellant’s contention of error is plainly sustained by these prior decisions. However, since in this, and another case likewise pending before us, State Farm Mutual Automobile Ins. Co. v. Scott, 5 Cir., 198 F.2d 152, but in which the situation is reversed because the trial Judge in that case followed our prior rulings and refused such an instruction, (and likewise refused to permit counsel to argue to the jury the question of quantum in the light of “similar cases” in the State Court), it is contended that in the former cases the point at issue was not fully developed, or all grounds in support of the correctness of such a charge presented, and that there are here material differences in the nature of the Court’s instructions to the jury, which require a different result in this case, we will consider and further briefly discuss the proposition, even though not required to do so.
The instruction of the Court here challenged so portrays the nature of the question and embodies all substantial features of the -appellee’s argument as to why such a charge is proper that we set it forth below.
These, in summary, are that the rule en
forced in the Courts of the State of Louisiana, by which past decisions on .quantum are referred to in subsequent cases as a guide by which a fair standard of damages for particular hurts can be estimated and the uniform practice of such Courts in doing so to secure a reasonable uniformity of awards, declares and constitutes the substantive law of Louisiana, and that’ the Federal Courts, under the doctrine of the
Erie case,
must by their instructions require the jury in the Federal Court to do likewise in order that the outcome of litigation in the Federal Court may he substantially the same, so far as legal rules determine the outcome of the litigation, as it would be if tried in the State Court.
On the other hand, the appellant denies that any such rule prevails in Louisiana. It is contended that Louisiana jurisprudence enforces no such standard for measuring damages for personal injuries; that in practice there are no jury trials on such questions in such cases, but that the trial Courts determine, and the Appellate Courts review, revise and adjudge, such cases and the amount of damages proper therein as a matter of law and fact and that there is no authority indicating that awards made in other cases constitute a part of the law of Louisiana so as to require comparison and control in the adjustment of such damages in other cases.
It is further contended that even in the rare instances of jury trials in the State Courts of Louisiana the law forbids expression upon the facts of the case by the judge in his charge.
The basis of the argument is that the amount of damages to be awarded in a personal injury suit is a question of fact, that the Court should not suggest a proper amount of award, and that the-Court’s instructions which seek to have the jury consider awards in other cases as. guides, as this is admittedly so considered by judges in the Louisiana Courts trying-cases without a jury, effects an abrogation of the right of trial by jury as guaranteed by the Seventh Amendment to the Constitution of the United States.
Upon further consideration of the question we find no -reason authorizing a departure from the rule which we have previously announced which, while not expressly stated, embodies the proposition that such an instruction is not compatible
with the historic function of the jury in fixing in each case the proper award to he made for the injuries sustained and pain and suffering endured in the light of the circumstances of the case then and there being tried and presented to the jury. It is true, as shown by the Louisiana State Courts decisions, that the judges of those Courts with practical uniformity use the determination in previous cases as a guide by which to estimate damages for the particular hurts presently before them for consideration. This is clearly shown 'by the cases cited by the appellee.
However, these cases also recognize that “no hard and fast rule can be laid down for fixing damages in cases of this kind, other cases merely serving as guides.” Wilcox v. B. Olinde & Sons Co., supra, [182 S. 154]. The cases cited by appellant
support the statement that “in Louisiana there is no standard and no monetary measure limiting recovery, statutory or judicial.” In Grissom v. Heard, 47 So.2d 108, 109, the Court of Appeal of Louisiana, says: “The sole issue before us is the quantum to be allowed the plaintiff. In determining that question, there are no set rules for our guidance. Each case must stand on its particular facts, the injuries received and its consequences. However, we do endeavor to maintain some standard of uniformity and consider the ability of the defendant to pay and the decreased purchasing power of the dollar.” The guide which the judges of Louisiana Courts employ is, in effect, the means which they have adopted for determining the fact of quantum. It must be conceded that their adherence to former cases as “guides” as a means of enforcement of uniformity is a matter of law. Nevertheless, quantum is recognized as a question of fact. In the State Courts both of these questions, law and fact, are determined by the judges, who are experienced and able to discriminate and make allowance for factual differentiation. Such procedure, or method of judgment, can not be employed in instructing the jury without violating the well recognized principle which forbids the judge to suggest the proper amount of award. It is also evident that a charge of the nature here complained of offers as a standard of comparison not the facts which the Federal Court jury might find upon consideration of all of the evidence in the “substantially similar case”, but only the conclusions which the judges of the State Courts have reached thereon. Manifestly, such a method does not lend itself to proper employment in the case of a jury trial in the Federal Court under the Seventh Amendment. The Constitutional requirement must, of course, be enforced in a suit for damages before a jury in the Federal Court. It is conceded that the fundamental basis of the right of recovery of such damages is that set forth in Article 2315, of the Louisiana Statutes Annotated — Civil Code, which provides that “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it”. Damages are given as an attempt to effect such reparation. In a trial before a jury in the Federal Court what constitutes such reparation is a question of fact to be determined by the jury, subject, of course, to the well recognized right of the trial judge in a proper case to set aside such a finding or direct a remittitur. Proper consideration of the historic separate functions of the judge and jury in such a trial leaves no room for doubt that only disruption and confusion could result from the importation into such a trial of the method employed by
judges
in seeking assistance from prior awards in similar cases in making their determination of the proper award in a case then before them. We do not find that such procedure has established,
as the substantive law of the state, a binding restriction or limitation on the amount of damages permitted to be recovered which should be enforced by the Federal Court by instructing the jury in such Court to use the amount of damages theretofore awarded in other cases as a gui-de for their ascertainment of the proper amount of recovery in the case which they are then determining.
We have no doubt as to the correctness of our conclusion. However, if it be thought that it may be induced by our experience with, and understanding of, the function of the jury under the common law, and by unfamiliarity with Louisiana jurisprudence, where the common law does not prevail, we may recall that Judge Lee and Judge Borah, both longtime Louisiana lawyers and jurists of exceptional ability, authored the decisions in Mutual Life Ins. Co. of New York v. Daigle, supra; Dowell, Inc., v. Jowers, supra, and the second Dow-ell case, supra.
The charge of the trial Court complained of was erroneous and the giving of it requires reversal of the judgment and the grant of a new trial.
The matters complained of by the remaining assignments of error, considered apart from the fundamental error in the substance of the charge, are not shown to have prejudiced the appellant and, moreover, are not likely to recur upon another trial.
Judgment reversed.