T. O. Johnson, Individually and D/B/A Johnson Equipment Company v. Carl Colglazier and Esther Colglazier

348 F.2d 420

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 10, 1965
• Docket: 21722_1
• Status: Published

Opinions

HUTCHESON, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Eastern District of Texas, Judge Fisher presiding, on jury verdicts awarding damages to the appellees in a suit for personal injuries.

Appellees, Carl Colglazier and his wife, Esther Colglazier, where in an automobile collision in which Carl received a back injury and Esther received fractures of the first lumbar- vertebra, a crushed ankle and rib injuries. The jury awarded $24,486.25 to Carl and $46,220.47 to Esther.

Two issues are raised on appeal: (1) whether it was reversible error for the district court to allow the plaintiffs’ attorney to use the “unit of time” ¹ basis for his argument on the verdict for damages for pain, suffering and mental anguish and to exhibit to the jury large charts showing his computation of those damages, figured on the “unit of time” basis during his summation and also in other respects to transgress the rules governing permissible argument; and (2) whether the verdicts are excessive. Also involved is the question of whether the propriety of the argument in a diversity jurisdiction case, such as this one is, will be determined as a matter of state or federal concern.

In addition to the complained of argument on the “unit of time” basis, in the closing argument to the jury (Rec. pp. 185-6) without any evidence whatever to support the argument and beyond all bounds of propriety, as an appeal to the sympathy of the jury, Mr. Alexander, plaintiffs’ counsel, said:

“The law is such, and facts are such, and people are such, that people who are severely hurt and permanently hurt do not always get nearly as much as they are entitled to in their legal damages. The people that benefit from the law are the people who aren’t hurt much. * * * When you go to extend it over a lifetime, then the figures look large and they are large, and then is when it is hard for you to set down and say she is entitled to $57,480.00 for her pain and suffering and yet if you broke it into segments, there is not a single segment on here that you wouldn’t be able to write as your verdict in five minutes, and agree on.”

And further, in complete defiance of law and propriety, Mr. Alexander went on to appeal to the jury for a large verdict in order to prevent a possible mistake, saying:

“ * * * cases aren’t tried piecemeal. The plaintiffs can’t come back into this court and say two years from now, five years from now, ‘We have found out now that our pain has gotten a whole lot worse. Can we reopen our case?’ There is nothing he can do. Cases are tried and finished, and the law must be ■ that way. As of today you must project both his and her troubles and disabilities over the future. It is your duty to do it, and I’m suggesting a guide for you to do it. * * *»

Thus, in effect, plaintiffs’ counsel, taking the case on damages for pain and suffering outside of the legal rule which authorizes the jury to award a reasonable amount for pain and suffering and by wrongfully stating that he is giving the jury a guide on which to “determine legal damages” has not only urged the jury to put themselves into the place of the plaintiffs, in violation of the universal prohibition against golden rule appeal, but has also enlisted the jury in his crusade as a plaintiffs’ counsel to have the jury not only aid the plaintiffs in this case but plaintiffs generally by rendering large and then larger verdicts, a wholly impermissible argument.

Appellants are here insisting that the question of improper argument by counsel and the failure of the trial judge to keep the case within bounds is a matter of trial procedure to be determined by the federal courts for themselves, and also insist that both under Texas law and the best considered state and federal decisions² the complained of action of the trial judge in permitting the argument to get out of bounds in the respects claimed, without direction or correction on his part, was reversible error.

We agree that this is so, and that, for the reasons hereafter stated as succinctly and lucidly as may be, the judgment must be reversed and the cause remanded for trial anew and for further and not inconsistent proceedings.

It would seem that under the test of Byrd v. Blue Ridge Electric Cooperative, Inc., 356 U.S. 525, 78 S. Ct. 893, 2 L.Ed.2d 953 (1958), as applied by this court in Monarch Ins. Co. of Ohio v. Spach, 281 F.2d 401 (5th Cir. 1960) and also under Maryland Cas. Co. v. Reid, 5 Cir., 76 F.2d 30, the question of the propriety of counsel’s argument and the judge’s action and non-action with respect thereto is a matter of trial procedure controlled by federal law. This is so because there must be weighed, against possible differences in outcome because of choice of forum, the needs of the federal courts, as an independent system of courts, to follow such procedures as will best enable them to carry out their constitutional duty to fairly and justly hear and adjudicate. Spach recognized as “[a]n important countervailing policy consideration in the Blue Ridge sense” the purposes of the Federal Rules and the Enabling Act to provide, on matters of practice “an approach to uniformity within the whole federal judicial system”.

In Maryland Cas. Co. v. Reid, supra, the nature of jury trials, the obligations of the federal trial judge to keep argument in them within bounds, and the consequences of his failure to do so were carefully examined and fully discussed. There the court, quoting approvingly in note 2 at p. 32 from Patton v. Texas & P. Ry. Co., 179 U.S. 658, 660, 21 S.Ct. 275, 45 L.Ed. 361³ went on to say at pages 32 and 33 of 76 F.2d:

“ * * * a common-law jury trial is at last a trial, with its attack and its defense, its action and its suspense, and not a scientific inquiry, which in a leisurely and impersonal way may continue indefinitely until the quest is at an end. Because these things are so of jury trials, it is of the genius of our institutions that they be conducted under the firm and steady guidance of judges as administrators, who, having minds trained and personalities adequate to the task, are held primarily responsible for their just outcome. Because these things are so, in a federal court at least, the conduct of jury trials is largely confided to the District Judge, who is expected to have and exercise trial skill of the highest order, and a wise and just discretion. His chief function, his primary object, is to keep the case within legal bounds by admonitions and rulings from its beginning to its end. He uses the rules of evidence [and of proper argument] as means, not ends, to elicit and confine the case to the best evidence available in order to bring the truth to light [and to obtain a just verdict thereon]. Trained in the principles and problems of proof, knowing how to value the pertinent, to reject the impertinent, he uses other trial rules to accomplish the same end. Nor does his function as overseer, superintendent, and administrator of the trial end with its ending.

“At common law and by statute, the federal District Judge is charged with the duty of granting a new trial in a jury case where, in his opinion, it went unjustly and injuriously out of bounds.³

“This court, as to law cases, is a court of error. We do not retry the case. We review the record made in it for reversible error, error by the judge, in conducting or failing to conduct the trial, which has, by permitting the case to get out of bounds, prejudiced the just result. * * * ”

On the precise “unit of time” arguments made here, while there are many cases in point, some holding one way and some another, appellants’ strongest federal case is probably Chicago & Northwestern Ry. Co. v. Candler, 283 F. 881 (8th Cir. 1922). After indicating that a mathematical computation of loss of future earnings was proper, the Court stated:

“No such process is possible in estimating the amount to be allowed for pain and suffering, or for pain and inconvenience. In the matter of pain, suffering, or inconvenience, no books are kept, no inventories made, no balances struck.

“Neither the plaintiff in the case nor any one else in the world has ever established a standard of value for these ills. The only proof ever received to guide the jury in determining the amount of the allowance they should make is, broadly stated, the nature and extent of the injury, its effect and results. They are instructed to allow a reasonable sum as compensation, and in determining what is reasonable under the evidence to be guided by their observation, experience and sense of fairness and right. At the best the allowance is an estimated sum determined by the intelligence and conscience of the jury, and we are convinced that a jury would be much more likely to return a just verdict, considering the estimated life as one single period, than if it should attempt to reach a verdict by dividing the life into yearly periods, setting down yearly estimates, and then reducing the estimates to their present value. The arbitrariness and artificiality of such a method is so apparent that to require a jury to apply it would we think, be an absurdity.”

Against this case, appellees rely strongly on Pennsylvania R. R. Co. v. McKinley, 288 F.2d 262 (6th Cir. 1961) which discussed the unit of time argument, reviewed the many state cases and the few federal cases in point, and refused to choose between the competing rules or to “announce a procedural blueprint to be followed in all future trials.” In that case the court stated:

“Control of the conduct of counsel so as to keep it within the limits of legitimate advocacy is primarily the duty and responsibility of the trial judge. We will not find error in his discharge of such duty unless we are persuaded that what he did, or failed to do, in matters within his discretion resulted in a miscarriage of justice or deprived one of the parties litigant of a fair trial. Many of the cases which have dealt with the claimed impropriety of an argument such as was made in this case have held that whether to allow or forbid dealing with damages for pain and suffering in the manner employed by plaintiff’s counsel here was a matter within the discretion of the trial judge. * * * ”

“There, indeed, may be situations where argument such as was made here could, and should, vitiate a plaintiff’s verdict. In this case, the evidence of defendant’s liability was strong. * * * The jury’s verdict was $150,000. We will not reverse the judgment entered because of the style and content of counsel’s argument.”

The best stated reasons for rejecting the “unit of time” argument and the plaintiffs’ arguments as a whole are found in Botta v. Brunner,⁴ note 1, supra. The arguments used here were not supported by any evidence because pain and suffering and mental anguish cannot be measured forensically in dollars on a unit of time basis; the amount of damages for physical pain or inconvenience must necessarily be left, without mathematical formula, to the sound discretion of the jury, and there is no mathematical rule by which the equivalent of such injuries in money can be legally determined. Chicago & N. W. R. R. Co. v. Candler, (8th Cir. 1922) 283 F. 881. Such arguments create an illusion of certainty in the jury’s mind which does not and cannot in fact exist. Here the whole argument used in this case, designed and framed as it was, in effect presents an appeal to. the “Golden Rule” or put yourself in plaintiff’s shoes, an argument specifically rejected everywhere.

The argument in favor of the “unit of time” argument, that it is proper for counsel in his argument before a jury to suggest answers based upon his view of the evidence and to explain the method by which he reached his conclusion, and that it would seem that suggesting some concrete formula, although it must be admitted to be purely a suggestion, in order to give the jury some basis to arrive at its verdict is preferable to leaving it entirely at sea to fix a damage figure en masse by guesswork, is nothing more than an attempt to mislead the jury by taking it down a back alley.

The evidence as to the elements of damages is discussed in detail in the briefs on their respective contentions that the verdict was, and that it was not, excessive. This point, however, seems to have been urged by appellants primarily to give emphasis to their contention on the error of the “unit of time” argument and on the argument as a whole.

We are of the opinion that, while generous in amount, considering the evidence as a whole, the amount of the verdict is not so excessive per se as to require reversal. We are, however, of the clear opinion that the plaintiffs’ argument as a whole transgressed permissible bounds, that the court’s silence and non-action in not preventing and rebuking the argument was reversible error, and that because of that conduct the judgment must be reversed because excessive, as induced in part by an argument designed, calculated, and effective to mislead the jury into believing that the determination of a proper award for legal damages for pain and suffering is a matter of precise and accurate determination and not, as it really is, a matter to be left to the jury’s determination, uninfluenced by arguments and charts of the kind involved here, which could only be regarded as tending to mislead the jury into believing that there was an accurate “legal” guide or chart to assist and direct them in reaching a large verdict for pain and suffering on considerations which have no proper legal place in the determination.

Reversed and remanded for further and not inconsistent proceedings.

1 . See Botta v. Brunner, 26 N.J. 82, 138 A. 2d 713, 60 A.L.R.2d 1331.

2 . Botta v. Brunner, note 1, supra; Afirett v. Milwaukee & Suburban Transport Corp. (1960), 11 Wis.2d 604, 106 N.W. 2d 274, 86 A.L.R.2d 227; Armstead v. Holbert (1961) 146 W.Va. 582, 122 S.E. 2d 43; Certified T. V. & Appliance Co. v. Harrington (1959) 201 Va. 109, 109 S.E. 2d 126; Chicago & N.W. Ry. Co. v. Candler (8th Cir. 1922), 283 E. 881, 884, 28 A.B.R. 1174; Crum v. Ward (1961) 146 W.Va. 421, 122 S.E.2d 18; F. W. Woolworth v. Wilson, (5th Cir. 1934), 74 F.2d 439; Sunray Oil Co. v. Allbritton, 5th Cir., 188 F.2d 751, 752; Sunray Oil Co. v. Allbritton, 5th Cir., 187 F.2d 475, 477; Vaughn v. Magee (8th Cir. 1914) 218 F. 630, 631; West Texas Utilities Co. v. Renner (Tex.Com.App.1932) 53 S.W.2d 451.

3 . “[Note] 2 ‘The judge is primarily responsible for the just outcome of the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determination, not simply ruling on the admissibility of tesimony, but one who in our jurisprudence stands charged with full responsibility.’ Patton v. Texas & P. R. Co., 179 U.S. [658] 660, 21 S.Ct. 275, 276, 45 L.Ed. 361.”

3 “3 Section 391, title 28 U.S.C.A. provides : ‘All United States courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or execptions which do not affect the substantial rights of the parties.’ (Compare Present Buie 59, F.B.C.P.)

4 . See Annotation: “Per diem or similar mathematical basis for fixing damages for pain and suffering.” 60 A.L.R.2d 1347 (1958).

See also: “Counsel’s use, in trial of personal injury or wrongful death case, of blackboard, chart, diagram or placard, not introduced in evidence, relating to damages.” 86 A.L.R.2d 239 (1962).