Grunenthal v. Long Island Railroad Company

PETITIONER:Grunenthal
RESPONDENT:Long Island Railroad Company
LOCATION:Stanley’s Home

DOCKET NO.: 35
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 393 US 156 (1968)
ARGUED: Oct 24, 1968
DECIDED: Nov 18, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – October 24, 1968 in Grunenthal v. Long Island Railroad Company

Earl Warren:

Number 35, Carl F. Grunenthal, petitioner v. the Long Island Railroad Company, et al.

Mr. Meyer.

Milford J. Meyer:

Mr. Chief Justice, may it please the Court.

This case presents a constitutional challenge to the power of the Courts of Appeals to review the denial by the districts courts of motions for new trial on the ground that verdicts are excessive.

This was an action in the District Court for the Southern District of New York under the Federal Employers’ Liability Act.

It was tried in two parts.

In the first trial, the jury found the liability of the Railroad to its employee.

A separate trial then was held in which the amount of the damages was fixed by the jury.

Judgment was entered upon the total verdict and on the railroad’s motions for new trial the district judge dismissed all of its objections on the record as to matters of evidence and as to the specific argument that the verdict was excessive.

The trial judge carefully reviewed all of the evidence that had been produced none of which was controverted and found that an opinion which appears in the appendix that the verdict was fully justified by the evidence.

On appeal to the Second Circuit, two judges of that Court found as did the third that there was no merit in the Railroad’s other arguments on error in the trial but reached the conclusion that the verdict was grossly excessive and directed a new trial unless a remittitur be filed.

The third judge who sat on the case disagreed.

He found that the verdict was sustained by the evidence and the Court should not have disturbed it.

We go directly to the constitutional question of whether the Court of Appeals had the power to make this order.

The Seventh Amendment was passed upon as early as 1830 by Chief Justice Marshall’s Court in an opinion by Justice Story in Parsons v. Bedford in which this Court specifically denied to itself the power to review questions of fact which had been passed upon and approved by the Trial Courts.

And that was the law until 1879 when the specific question here involved was first raised in Railroad against Fraloff when this Court in an opinion by Justice Harlan specifically held that it had no power to review the excessiveness of a verdict found to be proper by the District Court.

When the circuit courts, now the Courts of Appeals were created certainly they obtain no greater power of review than this Court when it itself was passing upon appeals from the District Courts.

And the history of the circuits in the early days was early acceptance of this rule which had been promulgated by this Court that there was no power under the Seventh Amendment to interfere on the basis of the excessiveness of a verdict.

That early acceptance gradually in the circuits one after another passed to arguments which constituted a rationalization of reasons why they should have some power of interference.

And finally in the last 20 years specifically beginning about 1948 each of the Courts of Appeals has made the statement that it has the adherent power to interfere and overrule on the basis of excessiveness alone.

Now, the Courts of Appeals have made three approaches to the statement of this power which they have that the Supreme Court did not have when it was hearing appeals itself.

First, some of the Courts of Appeals have said that the common law history which was looked to by the Seventh Amendment does not support the position that the early judges of this Court took on these questions.

That as a matter of fact when we look to the history of the common law procedure before 1791 when the amendment was adopted that the British Courts did in fact review in sort of an appellant procedure the qualm of a verdict as well as the weight of evidence.

This I think is completely erroneous and has no basis whatsoever.

It is based entirely on the fact that the English Court of Queen’s Bench decided en banc motions for a new trial which may have been tried before one of their judges at the assizes.

But Justice Story in the Parsons against Bedford case realized that as well as did all of the early judges of this Court when he said that there could be no review of questions of fact except in the Court in which the case was tried or to which it was returned.

Certainly, recognizing the fact that Queen’s Bench sat as a court en banc, and so any rationalization that the Court of Appeals today is like Westminster sitting in Queen’s Bench en banc because some of the history books tells us sometimes the trial judge did not sit in the court en banc certainly has no basis historically.

The fact is and the writers have said and we have studied everyone of the cases which have been referred to by any of the Courts of Appeals there is no case reported prior to 1791 in the English books in which a new trial was granted except for error of law in which the trial judge did not sit at Westminster upon the hearing of the motion.

Now, a second tact that has been taken and was taken by the Second Circuit in the early cases upon which our court relied was that true it is and this Court has held that a review of the quantum of the evidence may not ordinarily be made by an Appellant Court under the Seventh Amendment because this is the review of a question of fact and that this Court has said time and time again.

But said the Second Circuit and others following it, there must be an upper limit that is a verdict maybe somewhat excessive we cannot interfere but it may reach an upper limit at which the question then becomes one of law and not one of fact.

Milford J. Meyer:

Then says the Court, we do not review that were verdict which the Seventh Amendment forbids us from going, we review the discretion of the trial judge in passing upon that verdict.

No effort is made by any of the Courts of Appeals to explain how this question of fact, the excessiveness of a verdict is transmuted into a question of law by saying we are not reviewing the verdict we are reviewing the discretion of a trial judge and whether he has abused that discretion.

And if that be true, that discretion may be reviewed and they be set aside because of abuse on what basis should it be made.

This has never been explained by any of the Courts of Appeals except to say each case must be decided on its own facts.

We will not review for mere excessiveness, but this particular case looks like one in which the trial judge was way out of line even though he saw the witnesses, he heard them, he heard all the evidence he was in a much better position that we, nevertheless, he was so far out of line that we say he abused his discretion and that then becomes a question of law, but with no explanation as to how this maybe transmuted into a question of law and come outside the purview of the Seventh Amendment.

And the third rationalization has been that modern times require a reinterpretation of the Seventh Amendment and that this prohibition against the review of question of fact in modern times must be reexamined.

And since this Court has gone so far as to say the changes in practice, changes in methods of an appeal, changes in pleadings need not be prohibited and we need not follow common law procedures.

That therefore the Seventh Amendment may now be reinterpreted and we may now say that although ordinarily questions of facts may not be reviewed after the trial judge has approved them.

That in this type of case where there is an excessiveness involved this is an exception and that this Court should now reinterpret the amendment to say that here we will permit it.

This Court has never done.

The Courts of Appeals have on various occasions look to some of the expressions that this Court has made in refusing to pass on this question since 1879; the latest one being in the Neese against Southern Railway in 1955 where the specific question was post on a precisely similar situation.

And what this Court said there was, we will not reach at this time the constitutional question because reviewing the record we cannot say that this verdict was not without supporting the record, and therefore reversed the Fourth Circuit without going to the constitutional question and that may well be the position which this Court will decide to take in this case, because as we have pointed out, there is no justification in fact for the interference by the Seventh Circuit with this verdict.

There is no justification in fact for the Second Circuit in a vote of two judges to one to decide that the trial judge who saw the witnesses and heard the evidence abused his discretion in permitting this verdict to stand.

The Second Circuit majority did not even take the trouble to review in its opinion the evidence to determine whether in the language of this Court in the Neese case this verdict was without support in the record.

It contended itself with saying that this verdict that appears to us is grossly excessive and it used another phrase which is difficult to rationalize it all.

It said that we cannot find ourselves, and I’m paraphrasing I don’t have the precise words before me, able to reach a verdict greater than so much and therefore directed a remittitur.

The verdict in this case was $305,000.00.

Trial judge found it to be fully justified by the record and so did the dissenting judge on the Second Circuit.

The two judges joined in the majority opinion said that they could not find themselves able to justify a verdict beyond $200,000.00 and directed a remittitur to the amount or else a new trial.

Now, if Your Honors at this time as you did in Neese feel that this case does not present a question that must be decided that Fraloff and Parsons against Bedford may stand as they should until another case comes along.

We are perfectly satisfied of course but if there is any right of review that this Court is willing to leave with the Courts of Appeals it cannot be on such a subjective basis as two judges feel that this is grossly excessive while the trial judge and the other judge on the Court of Appeals feels that it’s perfectly proper.

There must be some objective treatment of this question and not this subjective approach to what is an excessive, what is grossly excessive, what is monstrous if this is to be the judgment upon which the Courts of Appeals are to base their decisions reviewing these questions.

We have raised one other question in our brief which I think Your Honors will not require me to orally argue and that goes only to this second question that I have discussed.

This was an action under the Federal Employers’ Liability Act and certainly as this Court has said time and time again the right of a jury trial and the right to have the jury verdict in violate as part and partial of that act, so that if in any case a verdict of a jury as to amount sustained by the trial judge should be sustained it is in a case under the Act.

Mr. Chief Justice I would like to reserve whatever I may need.

Earl Warren:

You may.

Mr. Gribbon.

Daniel M. Gribbon:

Mr. Chief Justice and Honorable Justices.

Petitioner’s principle contention is that the Court of Appeals is without power to review a trial court’s refusal to grant a new trial on the ground the jury verdict is either excessive or inadequate.

It is claimed that the exercise of this power contravenes the Seventh Amendment of the Constitution and that it constitutes a reexamination of fact tried by jury otherwise been according to the rules of the common law.

Daniel M. Gribbon:

I believe it is worth making explicit that there is not involved here a question of whether a Court can look into a jury verdict for purposes of considering a challenge either to its adequacy of inadequacy.

So much is conceded by the petitioner that a Court can do that and the burden of the complaint is that a Court of Appeals lacks that power under the Seventh Amendment and that only the trial court has any authority whatsoever under the Seventh Amendment to look into on any basis the amount of a jury verdict when it’s challenge for either excessiveness or inadequacy.

In this case, the appellate court directed that a new trial would be unnecessary if petitioner agreed to remit a portion of the verdict.

I do not believe and it hasn’t been argued that this remittitur feature of the appellate court’s decision has any significant bearing on the question that has been raised as to the power of the appellate court to order a new trial.

Potter Stewart:

The Court of Appeals was unanimous with respect to its power, was it?

Daniel M. Gribbon:

That was unanimous with respect to its power, yes.

Judge Hays raise no specifically said that he agreed with the majority on the constitutional question.

Potter Stewart:

Basically, he simply disagreed on the facts of this case?

Daniel M. Gribbon:

Disagreed on the facts of this case and he said that he would uphold the determination of Judge Irving Ben Cooper in the trial court.

It appears that this question, this constitutional question has never been directed resolve by this Court.

In 1955, in the Neese case where the question was raised but not resolved, the Court so stated in a brief opinion, as to the cases before Neese there are certainly and must be conceded statements in cases of this Court particularly in the last century which tend to support the viewpoint that the petitioner has suggested here.

In no case in my judgment was the kind of review that the appellate court has performed here before the Court when any sort of statements bearing on this question was made.

Now as to the cases, more recent cases in this century none of them deal directly with this problem but I think they bear heavily on the problem and that they suggest that the test to be applied in applying the Seventh Amendment is really one of substantial justice without principal regard for the forms and practices of common law.

What the Seventh Amendment does do is first preserve the function of the court in jury as they existed in common law and the essentials of trial by jury which the Court has said consist of a jury of 12 presided over by a judge and a unanimous verdict.

I think that is the teaching of the cases that would come to bear in this case.

As petitioner has said all 11 of the circuit courts have considered this constitutional question some before Neese, some after Neese, all of them have considered in some measure the very arguments that have presented here.

Each of the 11 appellate courts has concluded that the Court of Appeals does have constitutional power to review a determination by a district judge which refuses to order a new trial on the ground of a verdict being excessive.

In addition, a case decided by this Court last term Eby against the — Neely against the Eby Construction Company while not directly in point I think by close analogy establishes the power of the appellate court to enter — to determine that a new trial shall be given.

In that case, the Court rejected a contention that the Court of Appeals was without constitutional power either to grant a judgment N.O.V. or to direct a new trial.

And in so doing it specifically stated that so far as the restriction of the Seventh Amendment was concerned it really wasn’t any greater restriction on the right of jury trial whether a trial court or an appellate court were to enter the judgment N.O.V. or new trial provided they applied the proper test.

Now, the argument is advanced in support of petitioner’s contention is I submit essentially historical based upon the practice at common law it was a King’s Bench or Queen’s Bench that seem to have plenary power over the amount of verdicts.

I submit that that argument does not support the position petitioner suggest either is a matter of history or is a matter of constitutional analysis.

First is a matter of history, the argument really proves too much because at common law it was not the judge who presided over the trial that had the authority acting alone to determine whether the amount of the verdict was excessive or inadequate.

That power did not reside in the single judge who presided over the trial, rather the power over verdicts, the amounts of verdicts resided in the full court of King’s Bench sitting en banc at Westminster consisting of the four judges, three of whom would not have participated in the trial at all.

I submit therefore that insofar as substance is concern this reexamination if you wish or review of the jury verdict that the King’s Bench did which consisted of four judges really gives in essence the kind of an appellate review that we’re talking about there because you had participating in that review three judges who had not been exposed to the tempers of the courtroom who brought an element of detachment and objectiveness to this, and furthermore the right to look over the jury verdict was never given solely to that one judge who had participated in the trial and who quite possibly had been exposed to the tempers of the trial who always reserved —

Hugo L. Black:

Would that be reviewed by any a higher court?

Daniel M. Gribbon:

My information is it could not be reviewed by any trial — higher court.

Hugo L. Black:

— common law it was only the court that the case was tried even though some of the judges participated who would not preside in the trial.

Daniel M. Gribbon:

I think it’s formalistic to say that it was only the Court before whom the case was tried because three of the men sitting on the Court have not tried the case.

Hugo L. Black:

Well I ask you was it not the same judges of the same Court meeting together which was composed of the judges who tried it and the other judges who didn’t try.

Daniel M. Gribbon:

It was Your Honor it was —

Hugo L. Black:

Composed but not subject to appeal.

Daniel M. Gribbon:

It was not subject to appeal.

Hugo L. Black:

So that’s the issue that’s the facts of the common law procedure.

Daniel M. Gribbon:

That’s the facts and my suggestion is that those facts particularly the circumstance, the three judges who had not sit in on or sat down on the trial, have not reviewed the demeanor of the witnesses and were looking at it from afar in effect did participate in the examination of the challenge of the jury verdict as being excessive.

And it is for that reason that I suggest the cases in this Court which hold that it is the substance of what was required at common law without regard to the formalities of the common law procedure that are preserved by the Seventh Amendment.

This I submit in line with the decision of the Neely case is simply a matter of distributing the function of the Court as between trial court and an appellate court and does not go to the division of functions or the province of the jury on the one hand and the court on the other.

Nor I submit does it have any effect on the real vital parts of trial by jury as this Court has noted that there are 12 men presided over by a judge and their verdict is unanimous.

Hugo L. Black:

If this case had been tried in the state court what court would you first set aside the verdict excessive?

Daniel M. Gribbon:

In the state court I should think the trial court, the court of first instance.

Hugo L. Black:

Is there a procedure there?

I believe there is in Pennsylvania where they have plenty of judges who’s faced on it all members of the same Court that tried the case.

Is that true here?

Daniel M. Gribbon:

It is not true in the Southern District of New York which is where this case came up from.

Hugo L. Black:

Is it true in the State of New York?

Suppose that a case tried in State of New York, the question is the damages, can that be decided by the single judge who tried it or do they call another judge to that same court?

Daniel M. Gribbon:

Your Honor I regret to say I’m not on an expert on New York practice.

I do not think they call another judges.

I know that in the District of Columbia they do not call another judges.

It is just the judge who sat on the case.

Hugo L. Black:

What about Pennsylvania, do you know about that?

Daniel M. Gribbon:

I’m sorry I don’t know that.

Now if the Court please, the petitioner contends that even if the Court of Appeals can constitutionally review a trial court’s refusal to order a new trial on the ground of the verdict is excessive that this Court urge in exercising the review.

And there are two aspects to this problem, one of which the standard of review that was applied by this Court I think goes also to the question of the constitutional power.

It is not argued here by respondent that an appellate court has exactly the same kind of a power that a trial court has in dealing with the challenge to a verdict as being excessive.

The standard of review that this Court applied and that has been applied by the other to circuit courts is that every benefit of doubt must be given to the trial court’s examination of the jury verdict.

Every deference must be paid to the fact that the trial court had a superior opportunity to examine the witnesses and knew more about the case, and it is only when after giving every benefit of the doubt to what the trial court has decided that the appellate court has the authority, the constitutional authority that we say the Court has here to set aside the action of the trial court as being either without support in the evidence or an abuse of discretion.

Now, the Second Circuit and perhaps the most detailed examination of this problem in the Dagnello case in 1961 in which this Court denied cert went into great detail as to the limits of appellate court review of the determination by a trial judge not to grant a new trial.

That decision of the Second Circuit was written by Judge Medina who wrote this opinion here and he incorporated the views expressed in the Dagnello into his decision here and said he was applying the teaching of that case.

And the Dagnello decision elaborated on a number of words that had been used to describe the kind of determination that the appellate court must come to before it was justified in rejecting the determination of the District Court.

Daniel M. Gribbon:

I think that the words overly, excessive, monstrous without any support in the record all seemed to me to mean about the same thing and that is that giving what the district judge has decided as to the excessiveness charge of diverting giving that every benefit of the doubt.

Nonetheless the appellate court concludes that the amount of the verdict simply does not comport with standards of justice.

It may be abuse of discretion is as good term can be use, but in any event the appellate court is giving the District Court, the trial court in these circumstances I suggest exactly the same kind of benefit of doubt that a District Court must give to a jury verdict in considering whether the evidence is sufficient to go to the jury.

Every benefit of the doubt must be resolved in favor of the petitioner.

Now that is precisely what Judge Medina did in this case here, giving every benefit of the doubt as he said to the petitioner.

His conclusion joined in by the other member of the court was that nonetheless the jury verdict was outside the bounds of appropriateness as set by legal standards not simply by subjective standards.

Am I right thinking Mr. Gribbon that the verdict was — in argument not equal?

Daniel M. Gribbon:

Your Honor, you are right.

Let me deal with that now and I would like to suggest briefly at least four different elements that I believe fully support the determination by the appellate court here that the verdict that was entered was in excess of any legal standards of reasonableness.

In the first place, the complaint in this case asked for $250,000.00, $55,000.00 less than the verdict that was brought in.

Now I don’t suggest that the plaintiff shall never be able to get any more than he asked for in his complaint.

But this complaint was not a do-it-yourself-job.

It was not prepared by inexperienced counsel.

The plaintiff has been exceedingly well represented all the way through here and able trial counsel rarely understate the ad damnum.

Therefore, I believe it was quite appropriate for the appellate court to consider the amount ask for in the complaint as one of the operative facts in looking to whether this jury verdict did exceed the bounds of reasonableness.

The second point and this too was considered by the appellate court is that the plaintiff here did not suffer injuries to the vital body functions or even lost of limb.

His own doctor who was entirely candid in his examination said that the plaintiff was left all in all with the poor functioning foot, a tie had fallen on his foot in the course of his work on the railroad and smashed a couple of toes.

He had been subjected to considerable hospitalization.

There is no question that the plaintiff suffered damages, he was hurt and he suffered injury.

On the other hand, he didn’t suffer a loss of limb, a leg wasn’t amputated and as long as it is necessary under our legal system of law to equate suffering and damages with dollars some kind of rules have to be employed in order that the damages shall be in accordance with some standard of justice.

So that the doctor said all in all he’s got a poor functioning foot, and while such a handicap as this is admittedly serious I suggest it is not worth in the parlance of damage awards, the lost of a leg, an arm, or eyes.

Abe Fortas:

Well there’s nothing like that in the — no such analysis in the Court of Appeals’ opinion though, is there?

Daniel M. Gribbon:

Your Honor, the Court of Appeals did not draw the comparisons that I am drawing.

Abe Fortas:

No, the Court of Appeals just said this is too much.

Daniel M. Gribbon:

The Court of Appeals did refer to the — he spoke of the right foot was crushed, hospitalized, and did speak of the plaintiff’s injury.

That the Court of Appeals, this is at pages 65 and 66 of the record did relate the circumstances of the injury and gave what in the judgment of the Court of Appeals was an accurate factual description of the injury and of plaintiff suffering.

Abe Fortas:

There’s no attempt of analysis in the Court of Appeals.

I don’t know how you go about it if that’s part of the problem on the case.

I go about saying that this man’s suffering figured a $5.00 in second or something like that would have entitle him so much and no more how you do it but the Court of Appeals here made no attempt to do it as I see it they just said that it’s too much.

Daniel M. Gribbon:

Well they made no attempt to compare the $200,000.00 which the court had concluded was the maximum of what they permitted under the law with the $305,000.00 which the jury had brought in and which the judge had approved.

Daniel M. Gribbon:

But they did state his damages and his suffering in some considerable detail so that it was perfectly clear that the Court of Appeals considered it.

I don’t think it’s incumbent upon them to go out and say we think that Judge Cooper was wrong in assessing it at this that and the other thing.

It has to be considered in the aggregate.

Earl Warren:

What standard did the Court of Appeals use in determining what his damages were for suffering?

Daniel M. Gribbon:

They did not put a dollar amount on suffering.

Earl Warren:

They just said we thought the figure is too much?

Daniel M. Gribbon:

We think the whole verdict is too much.

Let me back —

Earl Warren:

Not the whole verdict but they said they thought his was too much, didn’t they?

Daniel M. Gribbon:

What they said was $126,000.00 was suggested to the jury by his own counsel as being the amount involved for loss of past wages and future wages.

Now, the difference between $126,000.00 and $305,000.00 presumably is for pain and suffering and I think it is fair to say the Court of Appeals said that shocked them.

They thought that was too much.

Earl Warren:

They didn’t say it shocked them, did they?

Daniel M. Gribbon:

They said they didn’t think anything over $200,000.00 would be adequate.

Earl Warren:

That’s just placing themselves in the position of the jury, isn’t it and are you saying we don’t think he suffered that much?

Daniel M. Gribbon:

Mr. Chief Justice, I think the Court of Appeals took every pains not to put itself in the place of the jury.

Earl Warren:

Why?

Daniel M. Gribbon:

Because of what they said here that they have don’t —

Earl Warren:

You mean in the opinion they didn’t —

Daniel M. Gribbon:

In the opinion, yes.

Earl Warren:

But in their subject to judgment they did?

Daniel M. Gribbon:

No more so I don’t think that in any court in considering whether evidence should go to the jury or whether an N.O.V. should be granted.

There is a problem here in making allowance for what somebody else could possibly think as for example what a jury could think as to whether certain things amount to negligence and yet concluding that no reasonable jury could come to that conclusion not just that you or the Court can come to that conclusion but really that no reasonable person could come to that conclusion.

Now, that’s the kind of a determination that’s made by courts in directing verdicts and entering judgments N.O.V. all the time.

The appellate court did its very best and I think the results it had here do indicate.

Abe Fortas:

But they didn’t say that.

Daniel M. Gribbon:

Your Honor, they didn’t —

Abe Fortas:

But they didn’t even say that, did they in this case?

Daniel M. Gribbon:

In this case, they didn’t say that but they incorporate —

Abe Fortas:

They didn’t say anything except that they think is too much, is that right?

Daniel M. Gribbon:

They incorporated by reference their elaborate decision in Dagnello in which just a few years previously Judge Medina had gone into this very thing about how necessary it was to give every benefit of doubt to the injured party.

And in that case, with a jury verdict of $97,000.00 for a leg that was amputated above than knee, he concluded that that was not in excess of the bounds of reasonableness.

Abe Fortas:

Let’s say presumably, trial judge is — see a lot of these cases and have some sense of what sort of the going rate is for pain and suffering to put it in those horrible terms which we have to but this appellate court here though without saying that we don’t believe any reasonable man could have arrived without using any of the conventional magic of our profession.

They said, this is — we are going to set this aside, it’s too much.

Daniel M. Gribbon:

I wonder if the Court hadn’t exhausted its use of the words as you suggest in the earlier Dagnello opinion where it went into a great —

Abe Fortas:

They have exhausted the use of words like that we’re in a pretty pickle.

Daniel M. Gribbon:

All sides agreed that the rule that was to be applied in that — that had been articulated in the Dagnello was what controlled here.

And in Dagnello, this Court through Judge Medina specifically said, “You got to give every benefit of the doubt.”

And even the District Court here recognized that there was some point beyond which is a matter of law the jury could go.

He spoke of it and indeed he started out.

He said, at first blush concededly this is accessible.

But then the judge went on and described the nature of the injuries and the appellate court here was impressed by the difference between the trial judges’ characterization of the injuries based upon the plaintiff in the doctor’s testimony and the testimony itself.

And there is a considerable difference between what these candid witnesses said as to their injuries and how the trial judge viewed it when the amount of the verdict was challenged.

The petitioner here said, that the pain was sort of like a dull toothache that he had learned to live with it and it was bearable.

It hurt a little bit more when it was —

Abe Fortas:

Trial judge didn’t like to have a toothache.

I see the use if fairly extreme language here, didn’t they in —

Daniel M. Gribbon:

The trial judge did —

Abe Fortas:

— justifying the verdict?

Daniel M. Gribbon:

And I think that that entered — I think it’s clear that that entered into the determination of the appellate court.

Is the full trial record here like in the court?

Daniel M. Gribbon:

Excuse me Your Honor.

Is the full trial record in the court?

Daniel M. Gribbon:

The full trial record is in the court only the portion dealing with injuries has been printed.

But the full trial record is largely —

How long did the trial take?

Roughly?

Well never mind.

Daniel M. Gribbon:

Two or three days; the full trial record is —

How big is that?

Daniel M. Gribbon:

This is the full trial record, so it was not a long trial.

Thurgood Marshall:

Mr. Gribbon, why is it or is it true that the Court of Appeals could not substitute its judgment without the jury as to the factual situation but yet it can do it on the question of damages?

Daniel M. Gribbon:

No, Mr. Justice Marshall, I’m not suggesting that it can substitute its view for that of the jury.

Thurgood Marshall:

Well, didn’t just about say that in this opinion that we just can’t go along with it?

Daniel M. Gribbon:

Yes, it can say that we believe that the jury’s verdict is excessive is beyond all reasonable bounds.

Thurgood Marshall:

It doesn’t say that.

Daniel M. Gribbon:

Unless, the net effect of saying $305,000.00 is excessive the most that can be allowed for this sort of injury is $200,000.00.

Thurgood Marshall:

Why not $250,000.00?

Daniel M. Gribbon:

This is where a certain amount of expertise and experience as Mr. Justice Fortas pointed out has to come in to play and sure the District —

Thurgood Marshall:

Where is the expertise get in this the jury’s here?

This matters for the jury.

Not to the expertise of a judge it’s for jury.

Daniel M. Gribbon:

The amount of the jury verdict was never even at common law exclusively for the jury.

Thurgood Marshall:

I didn’t say exclusively I said instead of the problem and they are not experts.

Daniel M. Gribbon:

No, but if the jury comes in with the verdict of $1 million for a sprained thumb.

I submit that that’s going to be set aside.

It’s going to be set aside if the District Court doesn’t set it aside, the appellate court is going set it aside, and if it doesn’t this Court is going to set it aside.

Thurgood Marshall:

I don’t know how much jury would give if it gets in sprain in its thumb?

Daniel M. Gribbon:

Well, maybe it would be inadequate in those circumstances.[Laughter]

But in any event the —

Thurgood Marshall:

But it must have been like — the jury verdict was $305,000.00?

Daniel M. Gribbon:

Yes, sir.

Thurgood Marshall:

The ad damnum clause was $250,000.00.

Daniel M. Gribbon:

It was.

Thurgood Marshall:

So since the jury gave $50,000.00 more maybe the Court of Appeals said will cut $50,000.00 off and that’s how we’ll get a $200,000.00 figure.

Daniel M. Gribbon:

Well, they didn’t say that.

No, I can’t say what they thought.

Thurgood Marshall:

Can you see what my problem is I don’t know what they meant it to?

They took a figure of $200,000.00 they didn’t justify it one way or the other.

Daniel M. Gribbon:

Well, I can’t say they didn’t justify it.

Daniel M. Gribbon:

They took the figures that have been put into the jury on loss of wages past and future.

And then, they related the testimony as was on the full record and not controverted as to the amount of suffering.

And based on that, they said in their judgment giving a trial judge every benefit of the doubt in his upholding the jury verdict.

Nonetheless, this seemed to them to be excessive; so excessive as to require reversal.

Thurgood Marshall:

Do you see what my problem is?

Daniel M. Gribbon:

I see it and I’m not suggesting it isn’t the difficult problem and along the lines of Mr. Justice Fortas as I believe alluded to earlier, trial judges aren’t the only ones that have experience in jury verdicts.

Appellate judges have the same course of experience and indeed may be and as good of position to view them.

In that connection, we —

William J. Brennan, Jr.:

I gather this panel had — there’s only one of them who had the trial judge experience in this panel.

Daniel M. Gribbon:

Judge Medina?

William J. Brennan, Jr.:

He’s the only one.

I don’t think Judge Lumbard or Judge Hays had ever been in a trial judge.

Daniel M. Gribbon:

Oh!

I’ve seen him many times at the courtroom.

I don’t know whether he has —

William J. Brennan, Jr.:

I don’t think have been a trial judge as I remember it

Daniel M. Gribbon:

For trial, I think that is correct.

He never was a —

William J. Brennan, Jr.:

Neither Judge Hays?

Daniel M. Gribbon:

That’s right.

William J. Brennan, Jr.:

And you think appellate judge is getting as much experience in this area as trial judge?

Daniel M. Gribbon:

I think it depends on the court.

William J. Brennan, Jr.:

Well, as a former trial judge, I won’t agree with you.

Daniel M. Gribbon:

And the state court I think probably not in the federal court —

William J. Brennan, Jr.:

In this problem what difference is it whether its state judge trial to court experience or federal?

Daniel M. Gribbon:

I’m suggesting that in a federal court, the district judge may not necessarily get a greater exposure than the federal appellate court.

But I do think —

William J. Brennan, Jr.:

Well, then I don’t understand your argument on expertise.

Daniel M. Gribbon:

Well, it maybe a question of two people or three people who have not been exposed to exactly the same problems as the trial judge bringing their judgment to bear on it.

Not just to second guess of it but to give him every possible benefit of the doubt and in some few instances they’re going to conclude that this was beyond the bounds of reasonableness.

Daniel M. Gribbon:

We are — we have put into our appendix to our brief a quite complete list of jury verdicts in recent case and dollars that have been awarded.

And I think it is from a distillation of those cases that the common law principles of excessiveness of verdict must be determined.

As the Court please, in closing let me suggest if I may that I think the second aspect of this case that is whether the appellate court should be upheld in reverse in a District Court calls really for more than most cases that quality of judging that Judge Learned Hand spoke up on the occasion of his 50th anniversary on the court.

When he said that the judging was in the nature of an art, the judge has some vague purposes and frames of references and among these he must choose but choose he must do.

Now, unfortunately, the choices that are made here really can’t be proven by words or numbers the way you would prove a mathematical or a logical proposition.

But I submit that the manner in which this District Court particularly in the light of its Dagnello case, this appellate court went about resolving this question shows a thoroughly objective and reasonable resolution of the interest of the parties and should accordingly be affirmed.

Thank you.

Earl Warren:

Suppose you prevail in this case, what will be the scope of the trial I the event there is no remittitur?

Daniel M. Gribbon:

Just on damages.

Earl Warren:

Just on the damages?

Daniel M. Gribbon:

Just on the damages, yes Your Honor.

Earl Warren:

Very well.

Milford J. Meyer:

Mr. Chief Justice and members of the Court.

I would be perfectly willing to retry this case before this jury if that is the Railroad’s position here.

I don’t think that we should have to retry a case in the Court of Appeals on damages and then the Supreme Court on damages and that’s precisely what counsel for the Railroad here is contending that we must justify now before this Court that its members would determine what was the proper amount that should be awarded.

This was the particular purpose of the Seventh Amendment when it was passed that this should not occur in the Supreme Court or in any appellate court in the United States.

Now, if I may, I’d like to answer a few of the questions that were asked and some of them maybe very relevant.

A question was asked by Mr. Justice Harlan I believe as to how long the case took the trial.

That appears in the docket entries it started on February 21 and ended on March 2.

Now, that doesn’t tell the whole story of course because February 22 was a holiday and I’m sure there was a weekend involved.

I know that I went back and forth in Philadelphia many days to try the case.

The question was asked by Mr. Justice Black as to the practice in Pennsylvania with which of course I am very familiar.

And that carried out the common law practice.

It still does.

A case tried by a single judge, a motion for a new trial is heard by the three judges of which he was a member of the panel unless it is waived.

But that question is not new to this Court.

This Court had the same question before it in Metropolitan against Moore when the question arose as to whether the general sessions of the then Supreme Court to the District of Columbia was the same court as the special session that tried the case.

And that was precisely what you had in England as Mr. Justice Black pointed out.

You have one judge sitting in assize and the motions for new trial came to Westminster and he sat there with his colleagues the three others and they decided the case that’s what this Court said was not an appellate review in Metropolitan against Moore in the general sessions of the Supreme Court of the District of Columbia.

Now, finally, I suppose I must make an answer to the question asked by Mr. Justice Harlan as to the ad damnum.

Milford J. Meyer:

The Court of Appeals said in its opinion although it did not discuss or try to justify in any way it’s cutting down the verdict, it did say that the fact of the ad damnum claim less than the amount awarded to the jury has some significance according to its language.

What significance it doesn’t say?

Well, let’s examine it for just a moment.

What’s significance?

This man was injured in 1962 and this action was started in 1963 and it didn’t come to trial until 1967.

The ad damnum was fixed in 1963.

It wasn’t amended until after the trial and at that time it was amended with leave of court and there is no contest by the Railroad that that isn’t proper.

It’s been done hundreds and hundreds of times and has always been held to be proper.

But the important point is this and the Court of Appeals recognized is it and the record shows it.

The ad damnum clause was never mentioned to the jury.

The jury never saw the complaint.

The jury was on its own on the facts to determine the amount that should be awarded.

Now, where my friend gets this figure of $126,000.00 I do not know.

It is not in the opinion of the Court of Appeals.

The figure that the lower court mentions was $155,000.00.

We have indicate plus $27,000.00 which would be $182,000.00.

We have indicated in our brief that they very may well have awarded $192,000.00 without going — stretching themselves one bit for loss of future earnings and as Mr. Justice Marshall just said the only question here is how much of the jury of awarded for this man’s pain and suffering.

Is this Court going to decide that because if the Courts of Appeals are to decide that purely on the basis that this is grossly excessive then mustn’t this Court also determine whether the Court of Appeals has abused its discretion in deciding that the court below has abused its discretion on this issue.

I like particularly also something that Judge Leonard Hand said but in this specific connection and I have it on my brief in discussing this type of review they call the attention of the fact that Court of Appeals must come at the matter ones removed not in the position of the trial judge.

And he said, “We must in effect decide whether it was within the bounds of tolerable conclusion to say that the jury’s verdict was within the bounds of tolerable conclusion.”

To decide cases by such tenuous unrealities it seems to us thoroughly undesirable.

Parties ought not to be bound by gossip or strands, judges ought not to engage in scholastic refinements and that’s precisely what the court below has done here.