Neese v. Southern Railway Company

PETITIONER:Neese
RESPONDENT:Southern Railway Company
LOCATION:

DOCKET NO.: 28
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

ARGUED: Nov 07, 1955
DECIDED: Nov 21, 1955

Facts of the case

Question

  • Oral Argument – November 07, 1955 (Part 1)
  • Audio Transcription for Oral Argument – November 07, 1955 (Part 1) in Neese v. Southern Railway Company

    Audio Transcription for Oral Argument – November 07, 1955 (Part 2) in Neese v. Southern Railway Company

    Earl Warren:

    You may proceed, Mr. Alderman.

    Sidney S. Alderman:

    Thank you, Mr. Chief Justice.

    I was referring to the decision itself by the Court of Appeals below.

    On my brief, the gray brief, pages 8 to 15.

    I admitted very careful, restatements of the case and of the holding of the court below with pertinent quotations beginning at page 11, and on page 12, from the Court’s language in this case.

    In the first quoted paragraph, it will be observed that the Court did not substitute its judgment for the judgment of the District Court as to what precise amount of damages were justifiable in this case.

    The District Court said 60 was excessive, 50 was all right.

    The Court of Appeals dealt with the evidence in the case, they admitted the evidence as to contribution the actual evidence, and it dealt with what in railroad rate problems as often referred to as the zone of reasonableness.

    It fixed the zone of reasonableness for the damages from bottom — it gets $18,000 to $19,000 and top brackets which it describe as fantastic on the evidence of $38,000 to $39,000.

    Leaving it for a subsequent jury trial to fix something reasonable in that zone of reasonableness.

    Far from denying to this plaintiff a jury trial, the Court dealt liability issues as well as damage issues.

    Both courts held that the evidence was sufficient to go to the jury to find the liability.

    The Court of Appeals reversed for a jury trial on the issue of damages alone, the most perfect situation in which a plaintiff in a damage suit can be whether defendant has no defense on negligence or liability.

    As a frightful matter, if this Court affirms the court below, that’s what will happen.

    Plaintiff will have a new jury trial under those favorable circumstances on damages alone.

    Maybe he has new evidence, I don’t know.

    The other alternative, if this Court should hold, and I think it would be a most serious holding, that is there is no appellate jurisdiction or power in the federal judiciary system.

    To review a judge for abusive discretion, a trial judge on the matter of this kind, but then this Court would reverse the Court of Appeals below and it would affirm the judgment of the District Court.

    Alright.

    Why do you use the phrase abusive discretion?

    Sidney S. Alderman:

    Sir?

    Why do you use the phrase abusive discretion?

    Sidney S. Alderman:

    That’s the phrase that the Court of Appeals below used, and I was leading up to inviting you to the language of that court in the middle of page 12 as quoted in my brief.

    Its ultimate conclusion was a total contribution of $50,000 by young Neese to his parents.

    And he and they lived out there with normal expectancy, seems to us far beyond the pale of any reasonable probability and entirely without support in the record.

    Then he cited cases from the Sixth Circuit and the Fourth Circuit, from other Circuits and particularly the 1948 decision by the Circuit Court of Appeals this same Court in the Virginian Railway against Armentrout.

    And the — and the Court quoted from the Armentrout case this language, which is its statement of what it understands the law to be and the law as it applies perhaps.

    Much more better than the argument act it made.

    The Court of Appeals below said, ordinarily, of course, the amount of damages is for the jury, and whether a verdict should be set aside as excessive is a matter resting into the discretion of the trial judge.

    This, however, is not an arbitrary but a sound discretion to be exercised in the light of the record in the case and within the limits prescribed by reasoning and experience.

    Sidney S. Alderman:

    And where a verdict is so excessive, that it cannot be justified by anything in the record.

    All of which the Court can take judicial notice, it is the duty of the judge, that is the trial judge, to set is aside, failure to do so is an abusive discretion analogous to error of law and as such reviewable on appeal.

    Now that’s the very question which Mr. Justice Brandeis to this Court pre-committed and reserve for future decision in Paramount Glassworks case, and I remind the Court that that case was decided in 1933, I will come to hit its historical setting in a moment.

    Earl Warren:

    Mr. Alderman.

    Sidney S. Alderman:

    Yes, sir.

    Earl Warren:

    What is the basis for — for the Court of Appeals conclusion, that $100 a month would be reasonable?

    Sidney S. Alderman:

    The highest contribution, that the plaintiffs — that the beneficiaries, the plaintiff’s beneficiaries contented had ever been made to them by the sum of $75 just before he died and at other terms from $30 to $45 a month.

    Earl Warren:

    Well, I understood that the — there was evidence in the record to the effect that when he would get his paycheck, as the mother said, he would turn it over to daddy and say —

    Sidney S. Alderman:

    Well —

    Earl Warren:

    — “use it for what you wish,” and the fact that he contributed that much only was, apparently because that’s all that the parents wish to take out at that time, but — but it didn’t mean that that’s all the boy was willing to, if they’re more capable of (Voice Overlap) —

    Sidney S. Alderman:

    Yes, sir.

    Undoubtedly, this was a good boy and a good son, and he was generally (Inaudible) disposed to his parents.

    There are certain undisputed facts in the case however, summarized on page 9 of my brief.

    He had worked for the respondent as a crime inspector for 3 years and 15 days.

    During his time, his total take home pay was $6544.79.

    An average of slightly under $2181 a year.

    Of that total of $6544 he had actually save for himself not to use it upon himself and not contributed to anyone its total of $4984 on the building and loan account.

    Earl Warren:

    But that was only after he had offered it all to his parents in the event that he had decided to take it.

    Sidney S. Alderman:

    True sir, but he was a man of age, single, no children, no dependents, it isn’t contented with his parents were determined and he boarded and roomed with his parents.

    There’s no evidence that he paid them anything for board or room, and of course, if the father needed a paycheck, he would be glad to turn it over to him.

    Earl Warren:

    But suppose — suppose the boy had offered him, offered the parents all of his earnings as he did — apparently did here, there was evidence to that effect.

    And the parents said, “No, we don’t — we don’t need anything at the moment.

    We don’t want to take anything from your earnings at the moment.”

    And the boy turns out and saves it all.

    He doesn’t give them anything.

    Would you say under those circumstances that they would have no right to recovery because they didn’t take it, or would it have to be limited to the amount he contributed?

    Sidney S. Alderman:

    I think its — it isn’t necessarily limited it to the amount he actually contributed.

    It’s a reasonable inference to be drawn from all of the evidence as to what pecuniary laws these nondependent parents sustained.

    Earl Warren:

    Yes.

    Sidney S. Alderman:

    That is what reasonable contributions they might have anticipated from this young man.

    Earl Warren:

    But what I’m trying to get at is this.

    Did the Court limit itself to his own view that half a quarter of his earning was all that could reasonably be expected to come from him, or did it take in to consideration the fact that the had tendered all of his earnings to his parents, and the fact that even when they didn’t take it, he was of a saving disposition that he worked hard around the little ranch that they had, and that he had this money available there to all the terms and purposes for whatever use his parents might want to make it.

    Sidney S. Alderman:

    I think the Court took that all into consideration because it commented on it in the earlier part of its opinion.

    I haven’t undertaken to quote that full opinion here.

    Earl Warren:

    Well that’s — that’s very important to me.

    Sidney S. Alderman:

    Yes.

    Earl Warren:

    Where in the opinion does it say they took that all into consideration?

    Sidney S. Alderman:

    It’s in the earlier discussion before the part of the opinion below, which I am — the entire opinion starts at page 45 of the record —

    Earl Warren:

    Yes I have it.

    Sidney S. Alderman:

    — and ends at page 51.

    At the first beginning paragraph on page 49, that evidence is discussed, the parents of Neese testified that he always give his full paycheck to daddy and told him to use it as he please and so on.

    Earl Warren:

    Yes.

    But the — but do they say in there that they took that into consideration when they get over to the paragraph on — on page 50.

    They say, if we assume, however, that the parents reasonably could have expected an average contribution of $100 per month for the rest of their lives, what is the present value of such an expectation?

    And then they say, “We shall assume this optimum conditions.”

    Now, what is there in the evidence or in their opinion that shows their reasoning in making this $100 represent the most optimum conditions?

    Sidney S. Alderman:

    Well, I think it’s based on the study of all of the evidence in the case and particularly the evidence as to actual contributions and as to the savings of the young man and so forth.

    Earl Warren:

    Well what is there in here to show that — that it should be one-fourth of his earnings, let us say rather than a third of his earnings?

    And — and what is there of certainty in the facts that would compel anyone to arrive at this $100 a month instead of some larger sum?

    Sidney S. Alderman:

    Well, I don’t think the Court of Appeals below set alone any $100 a month as I say.

    They undertook to estimate its own reasonableness for — remember this is a cash payment now which will draw an income in the future which the Court of Appeals below said would range from $18,000 or $19,000 at the bottom up to $38,000 — $37,000 or $38,000 at the top.

    It was putting a legal judgment on what reasonably could be produced as damages from all the evidence in the case as I understand it.

    Now moreover, Mr. Chief Justice, the question of whether that was a correct decision by the Court of Appeals below is not here on this writ of certiorari.

    It was not presented as a question presented on the petition.

    In other words, the merits of that decision are not held.

    The sole question was presented or whether the Court of Appeals had jurisdictional power to pass on that question at the review of the district judge’s upon it.

    Well didn’t the Court actually make a computation based on an expected income of $2500 for a month.

    Sidney S. Alderman:

    Yes, sir.

    And then they come up with $39,000 at the most.

    Sidney S. Alderman:

    That’s right, sir.

    Hugo L. Black:

    That’s on 5%.

    Sidney S. Alderman:

    Yes, and that was much more than the young men had ever made.

    Hugo L. Black:

    Was that — is that the experience, 5%?

    Sidney S. Alderman:

    Sir?

    Hugo L. Black:

    I thought (Inaudible)

    Sidney S. Alderman:

    Well, the Court of Appeals below dealt with 5%, 4% and 2.5%.

    That is quite (Voice Overlap) wide derogation in his own reasonableness.

    Earl Warren:

    Well, they — they don’t grab that consideration to the District Court, do they, to use 3.5%, 4% or 5%?

    Sidney S. Alderman:

    The District Court made no announcement whatsoever as to the grounds upon which he made his decision except to say that the verdict was excessive, but he didn’t he feel that it was the result of ramification of prejudice and he would set it aside unless the plaintiff would follow — in other words, he fixed out of the area $10,000.

    And he made no statement to show the basis of the remittitur which he suggested a thing which on the face of it, it seems to me, indicates if you are the person law or arbitrary of judgment.

    (Inaudible)

    Earl Warren:

    47.

    47?

    Earl Warren:

    47.

    Sidney S. Alderman:

    47.

    Hugo L. Black:

    Did the Court of Appeals, take into account at all that a 22-year old man was elected to increases his earnings?

    Sidney S. Alderman:

    I don’t make comment on that, sir.

    Hugo L. Black:

    What was his life expectancy or the life expectancy of his mother?

    Sidney S. Alderman:

    Life expectancy of his mother is stated by the — Mrs. Neese’s life was used because she is the younger parent and she’s expected to live longer.

    Hugo L. Black:

    And what — what was that expectancy?

    Do you recall?

    Sidney S. Alderman:

    No, sir, I did not.

    I thought it was stated by the Court of the Appeals that is —

    Hugo L. Black:

    But if we do look into the matter at all as to the question of Mr. Chief Justice has mentioned.

    Sidney S. Alderman:

    Yes.

    Hugo L. Black:

    I thought we’d be compelled to consider that the jury or the Court would have a right to refer that a 22-year old man was elected to make more as he went on?

    Sidney S. Alderman:

    I — I think but there but let’s —

    Hugo L. Black:

    And they didn’t do that as I see it.

    Sidney S. Alderman:

    That’s why I started out, Mr. Justice, by saying, “I did not think this Court thought this case here on certiorari merely itself to review the evidence and to substitute its judgment for the judge in the Court of Appeals.

    But doesn’t the Court do that when he says if he continued in his present work, he would probably have attained the salary of $4300 per year.

    Sidney S. Alderman:

    That’s right, because (Voice Overlap) —

    — his father received for the same position.

    Sidney S. Alderman:

    That’s — that’s what his father was receiving at 60 and he also was a car inspector that they’re in the same position.

    Hugo L. Black:

    Well the date on that in connection with how much, he would like to be (Inaudible)?

    Sidney S. Alderman:

    I certainly — certainly think they considered it in that connection.

    Now I want to say to the Court that I am not — particularly understood in this case in the amount of the money that is to be paid to petitioner.

    We earn some money and we earn a fair and reasonable amount.

    But what concerns me in this case, is, what I think would be done to the few administration justice in the federal courts appeal to what should hold that the Courts of Appeals of the United States are entirely without jurisdictional power to review a trial judge for abusive discretion and refusing to set aside the verdict as excessive or as inadequate.

    That —

    Earl Warren:

    Well, Mr. Alderman, if this Court was to hold of this — on the facts of this case, the decision was — was such that a reasonable — the facts were such that reasonable people might come to different conclusions on it and that therefore, there was no abusive discretion on the part of the District Court.

    Would that particularly concern you?

    Disturb you?

    Sidney S. Alderman:

    I would say that $50,000 as quickly as I could get it to the petitioner with interest and cost.

    And I concede that this Court has the power to make that kind of finding if it wishes to review the evidence in this case.

    But I stil insist that this Court did not bring this case here for that purpose.

    It brought it here to decide an important question of federal appellate jurisdiction, and to resolve what is at least a verbal conflict between the different Circuits on that question.

    To wit the very question that Mr. Justice Brandeis so carefully saved for future decision in the Paramount Glassworks case.

    Earl Warren:

    And you would say we did that without regard to the merits of the case?

    Sidney S. Alderman:

    I beg your pardon sir?

    Earl Warren:

    You would say we did that without regard to the merits of the case between the two parties?

    Sidney S. Alderman:

    Well, I’m quite willing to admit that there maybe a debatable quality in the merits of the decision of the Court of Appeals below.

    One court might look at one way and one another.

    But I still come back to the fact that your writ of certiorari did not bring that question here.

    And —

    Felix Frankfurter:

    That’s the point we’ve been saying that if say that you notice, we brought here for this event — the only way counsel has to knowing what the had brought the case here for is what the customs presented which is (Inaudible) granted denying the petition.

    Sidney S. Alderman:

    Exactly.

    Felix Frankfurter:

    That’s not a good reason or another difficulty as I understand is the (Inaudible)

    Sidney S. Alderman:

    Not at all.

    Felix Frankfurter:

    (Inaudible)

    Sidney S. Alderman:

    He confined this petition —

    Felix Frankfurter:

    He knows — he knows what (Inaudible) by his argument.

    Sidney S. Alderman:

    He — he confined his petition for certiorari solely to the appellate jurisdictional question.

    Now he could easily have added a third question in any event was the decision of the Court of Appeals below, right or wrong.

    And if this Court had granted certiorari without confining the case to the jurisdictional question, that question would have been here but it isn’t here.

    Earl Warren:

    But didn’t you argue the on the merits?

    Sidney S. Alderman:

    Below?

    Earl Warren:

    Yes — no, here — I mean here.

    Sidney S. Alderman:

    No, I’m just trying to show you what the decision of the Court of Appeals below is simply to show that it was not undertaking to pass on a use of factual question but on a question of law.

    As to the ultimate reasonableness, in view the evidence in the case and it disclaimed carefully that it would interfere with the ordinary discretion of a trial judge as to the quantum of a verdict.

    And it would only — excuse me —

    Have — have you collected the cases in your brief where this Court has said we will consider nothing except the questions raised in the petition to certiorari?

    Sidney S. Alderman:

    Oh yes and they’re setout in the first point of my brief beginning at page 20.

    It’s perfectly clear that this Court does not bring cases of this character here for the purpose of reviewing the evidence below in substituting its judgment for that in the Court of Appeals.

    The Courts of Appeals suppose to be the final Courts on questions of that character and that would not make a — a case for certiorari in this Court.

    Earl Warren:

    Well Mr. Alderman, I — I’m looking now at — at your brief opposing the petition for writ of certiorari, that’s filed February 9 —

    Sidney S. Alderman:

    Yes.

    Earl Warren:

    — and you take as your second argument there the fact the verdict was not supported by the evidence.

    Sidney S. Alderman:

    Yes.

    Earl Warren:

    And you say petitioner in contending that the verdict was supported by the evidence calculates the decision after the retirement of his father which has not yet occurred would contribute $3300 a year.

    And then you go on to say this calculation is made on the basis of what he states are the needs of the family and so forth and then you state what — what he did not establish, and then you come to conclusion that the verdict was not supported by the evidence.

    Sidney S. Alderman:

    That was the —

    Earl Warren:

    Now — why then — why then would you say that we didn’t consider — weren’t interested in the merits of this case when we considered it on — on certiorari?

    Sidney S. Alderman:

    Mr. Chief Justice, it’s necessary in undertaking to answer the petitioner’s petition and his argument to answer his argument and most of his argument was not addressed to the jurisdictional problem but addressed to the problem as to whether the Court of Appeals below made a correct or an incorrect decision.

    Earl Warren:

    That’s one of your argument here.

    You didn’t say you hadn’t raised that question, you met —

    Sidney S. Alderman:

    No sir.

    Earl Warren:

    You met it here and argued it before us.

    Sidney S. Alderman:

    I may have made a mistake in trying to made at that stage.

    Tom C. Clark:

    Suppose we were to say that (Inaudible) to say that we are wrong in that view?

    Sidney S. Alderman:

    That’s the most interesting question, Mr. Justice Clark.

    Sidney S. Alderman:

    As I see it, the controlling jurisdictional statutes cover this Court as well as the Court of Appeals and I don’t say if you should declare that the Courts of Appeals of the United States are wholly without this character review for abuse of discretion, that you would leave yourself in the position of being also unable to make such a review.

    Now, I was somewhat tried it but I cannot say for the —

    Felix Frankfurter:

    (Inaudible) if I understood the purport of Justice Clark’s question, did you understood the difference the way I do.

    I got — I understood his question here.

    Assuming that the question presented in the petition of certiorari, do not raise a particular question as to my relief, that is a here and concentrate questions presented one and two — they present one and two and not three with different purchase.

    Sidney S. Alderman:

    Thats right.

    Felix Frankfurter:

    But as I understand the purport of Justice Clark’s question assuming that that is so made this Court of its own motion note an obvious error in the judgment of the Court of Appeals which is tasked to review and which was sell the goods sustained on the issues amended but which also has an — an (Inaudible)

    Sidney S. Alderman:

    I understand sir — I —

    Felix Frankfurter:

    (Inaudible) error —

    Sidney S. Alderman:

    I thought I had to answer that question before it was asked.

    I said I didn’t at all challenge the power of this Court to do that.

    It would be —

    Felix Frankfurter:

    But that happen to arrive — that’s not — that’s — that question arise —

    Sidney S. Alderman:

    That’s quite (Voice Overlap) —

    Felix Frankfurter:

    We’re here in a situation which we’re not dealing with the jurisdiction of the Court of Appeals —

    Sidney S. Alderman:

    That’s quite right.

    Felix Frankfurter:

    And I should say the subject to correction or I should be deprived if I will so I should be deprive if I would adjust the correction.

    In this instance, I should think that it was a possible error in a judgment which you’re asked to affirm this Court would have power to sustain immediate grounds of judgment would have the advice even though counsel for petitioner would grant sufficient reason of its own isn’t right there.

    Sidney S. Alderman:

    Well I agree to that, yes, of course.

    Hugo L. Black:

    Well he — he argued it, didn’t he?

    He just didn’t put it in his questions presented.

    Sidney S. Alderman:

    He didn’t put in this questions presented, that’s quite right.

    Felix Frankfurter:

    But suppose we have — I suppose the reason that counsel has to put questions presented is to make us determine whether the question is wording for —

    Sidney S. Alderman:

    That’s —

    Felix Frankfurter:

    — acceptance here —

    Sidney S. Alderman:

    That’s what you have said constantly in your decision.

    I started to say and my time is rightly elapsing, that I was somewhat shaded apparently with over frankness and the second point of my argument beginning at page 22 of my brief, until the partition that this Court not to be just as entirely frank as I know how to be.

    Undoubtedly, the long list of cases that Mr. Justice Brandeis put in his footnotes in Fairmount, as of 1933, constituted an overwhelming weight of authority against my position in this case as of that date.

    I have read and studied and analyzed all of those old cases.

    I made a careful study on the earlier cases where the rule first began to be expressed and I am convinced, that the rule had this entire basic foundation on this procedural limitation of writ of error, which had gone — couldn’t bring up at all to an appellate court any question about a motion of the new trial — for new trial of the overruling of the motion for a new trial.

    Sidney S. Alderman:

    I — I have no time to review those cases but I think if you understood to look at the analysis of them on the brief, in four or five of the very earliest of those cases, this Court simply said that we cannot review this question on writ of error.

    That was repeated time after time and then as the old cases so frequently did, they took a step farther, went through a transition.

    Gradually, the statement began to be changed into a statement of the rule of lack of jurisdiction.

    It has been repeated so often that the Court just got, I think, in the habit of saying we don’t review this kind of question.

    The first case in which it got around to that was in the late part of the last century, Kerr against Clampitt 95 U.S.188, cited on page 46 of my brief in 1877.

    There we did and it’s the first case I can find where this Court stated it as — has a rule of no jurisdiction but then it went on in the passage I’ve quoted and carefully showed the origin of it in this common law of limitation on the writ of error that the Court could not look into a thing because it was not a part of the record.

    Now I do, of course, admit that state of decision shown in the footnotes in the Fairmount Glass Works case in 1933.

    I have a historical discussion in my brief which I won’t have time to review here.

    Tracing the changes in the judicial code from the original Act of 1789 down to the Act of 1948, which rewrote to recodified and enacted into positive law the judicial code as Title 28, United States Code, (Inaudible) 1952 edition.

    In 1928, Congress took the two first batch at abolishing the common law, the writ of error, and its technicalities.

    They didn’t complete that job.

    They didn’t go back and repeal inconsistent laws, and put it in final shape until in the Recodifying Act of 1948.

    The Fairmount case was decided in 1933, 14 and some years before the Recodifying Act, but five years after the first two batch that Congress took at abolishing the old common law writ of error.

    And such was the acuteness of Mr. Justice Brandeis writing for this Court that he, knowing what Congress had done in 1928 was careful in that decision to show that the abolition of the writ of error had abolished that whole basis for the old rule against jurisdiction.

    He, of course, could not know what was going to happen 14 years later in 1948.

    But he saw that Congress in terms had abolished common law writ of error.

    Felix Frankfurter:

    The provision ought to interfere considering the fact that that amendment derive from the Court’s own suggestion.

    Sidney S. Alderman:

    Yes, certainly.

    Hugo L. Black:

    Up to that time, had — had this Court ever held that if appellate court could do what the court did here?

    Sidney S. Alderman:

    Up until that time, I don’t — don’t think it is — or —

    Hugo L. Black:

    Had refused to join up to that time.

    Sidney S. Alderman:

    (Voice Overlap)

    That’s right.

    Mr. Justice Brandeis, as set out in the footnotes in that case so far as I can find is absolutely accurate and as I say on the brief at that date, 1933, Cobb against Lepisto in the Ninth Circuit stood in splendid isolation as the only case of this Court or the Court of Appeals holding that there could be this kind of review for abuse of discretion.

    Now far from that being the situation today, the last part of my —

    Felix Frankfurter:

    I’d like to make a qualification to that.

    Sidney S. Alderman:

    Sir?

    Felix Frankfurter:

    Id like to make a qualification —

    Sidney S. Alderman:

    Yes, sir.

    Felix Frankfurter:

    — namely, he himself pointed out in his opinion while the review was not exercised, it was constantly being said because of the discretion of this —

    Sidney S. Alderman:

    Yes, a matter of polity, he said.

    He did not say no to jurisdiction.

    He said this Court has followed that polity and also have the Courts of Appeals —

    Hugo L. Black:

    Followed that practice they just never have done it.

    Sidney S. Alderman:

    Polity he said and —

    Hugo L. Black:

    They never have done exactly?

    Sidney S. Alderman:

    That’s right.

    In other words (Voice Overlap) —

    Hugo L. Black:

    — or another, they have just not done it.

    Sidney S. Alderman:

    As — as a matter of policy and not on any holding of one of the constitutional statutory jurisdiction.

    Now I think, if the Court please, it’s highly significant also and I don’t want to be overtaking to look about the questions that petitioner presented but the rules of this Court also require that he should set out the statutes involved in this case.

    He said that most statutes whatsoever, either on petition or on brief though he does quote the Seventh Amendment as being involved.

    Petitioner and all of his documents just (Inaudible) all statutes aside and argues that for the Court to exercise the power which it exercise would violate the Seventh Amendment and would be unconstitutional.

    He didn’t present a constitutional question among his questions.

    Felix Frankfurter:

    But if he’s right about that and he doesn’t have to set out the statute.

    Sidney S. Alderman:

    That’s quite right.

    I suppose — but I do set out the statutes and I’d like to invite the Court’s attention to them on page 2 of my brief.

    First, all the three come from the Recodifying Act of 1948.

    The first one, Section 23 of the Act of June 25, 1948, was the final step in abolishing common law writ of error.

    All Acts of Congress referring to writs of error shall be construed as amended to the extent, I say, it’s a substitute appeal for writ of error.

    Now the two jurisdictional statutes follow.

    Section 1291 is this.

    It’s now 1291 of the United States Code, Title 28, 1952 edition.

    The Courts of Appeals shall have jurisdiction of appeals from all final decisions of the District Courts of the United States except for a direct appeal maybe heading in the Supreme Court.

    Now that’s a jurisdictional statute.

    This was a final judgment.

    It’s certainly was not one from which a direct appeal could come to this Court.

    Now most significantly, even this thing, Section 2106, which is the — the controlling statute now, which was not in existence in 1933.

    The Supreme Court or any other Court of appellate jurisdiction, may affirm, modify, vacate, set aside, or reverse any judgment, decree or order of a court lawfully brought before it for review and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as maybe just under the circumstances.

    What — what weight do you give to the comments of the advisor (Inaudible)

    Sidney S. Alderman:

    I set those out fully in my brief.

    They showed that certain of the old provisions were appealed as obsolete.

    The old provision of Section 22 of the original judiciary act forbidding reversal from error in fact was repealed in 1948.

    But I do want to call your attention to this fact in connection with my historical discussion and I haven’t had time to go into.

    September 24 and 25, 1789 or perhaps two of the most significant days in our history.

    The first Congress — first session at that time was dealing with two documents of the greatest importance.

    First was the Judiciary Act which established the federal judiciary and regulate.

    The other was 12 proposed amendments to the Constitution of the United States.

    The Judiciary Act and the proposed amendments went through the legislative history of that Congress almost hand in hand.

    They were considered in the light of each other.

    There were two views in that Congress.

    One was that the Judiciary Act should be affixed first and then the amendments passed upon in the light of the Judiciary Act.

    Others thought vice versa, but they did go hand in hand and that was the most extraordinary effort that’s harmonizing the Judiciary Act and the proposed amendment.

    You recall that the first two of 12 proposed amendments whenever ratified by the States so they became the first 10 Amendments of the Bill of Rights and proposed amendment nine became Amendment Seven.

    Now that very Congress in that very Judiciary Act while they put in Section 22 which is common on — on Mr. Justice Brandeis in Fairmount, also carried Sections 17 — Section 17 I’ve quoted on page 38 of my brief.

    And I think it’s a profound significance.

    The Courts of Appeals shall have jurisdiction of Appeals — oh I’m sorry.

    I picked up the wrong words.

    Oh, page 34 of my brief.

    Section 17 of the original Judiciary Act provided this.

    That all of the said courts of the United States, District Court, Circuit Courts, and this Court, appellate courts and trial courts, that all of the said courts of United States shall have power to grant new trials in cases where there has been a trial by jury for reasons for which new trials have used it and granted in the courts of law.

    Now at that point on page 34 of my brief is the defect in my research.

    I said that that language remand the same except for a comma that was properly put in by the Act of 1911.

    I was wrong about the comma was put in.

    The phrase was properly punctuated by revised statutes Section 726 of 1878 and then the Act — the Act of 1911 added that second summons quoted on the middle of my page.

    Another defect and a more serious one in the research set out on my brief is that I should have shown how long these two provisions, Section 17 and Section 22 of the original Judiciary Act, remained hand in hand in the Judicial Code.

    They remained there together until 1948 under when reversal was passed.

    No member of that original Congress so far as the debate show as shown by Charles Warren his famous article “New light on the history of the Judiciary Act”, which upon which this Court based its decision in Erie Railroad against Tompkins, overruling Swift against Tyson.

    This article takes up to debate section by section, and it discloses that there was no debate whatsoever about this Section 17.

    Everybody agreed that the Courts of Appeals like the District Courts or trial courts should have the power to grant throughout —

    Felix Frankfurter:

    (Inaudible)

    Sidney S. Alderman:

    — then Circuit Courts, and this Court.

    And there was no debate about it.

    That original Congress saw no conflict between the provision of Section 22 and the provision of Section 17.

    One was dealing with the question of law.

    The other was dealing with the matter in fact as the old language had it.

    But one article clearly discloses that the purpose of Section 22 in the Original Act was identical with the purpose of the Seventh Amendment, merely, to prevent the Courts of Appeals from ruling or reversing on pure questions of fact as distinguished from questions of law or mixed questions of law and fact.

    Or, not only was I think those two documents, the first judiciary act and the first ten amendments or the — proposed first twelve passed by the same Congress constitute probably the most extraordinary mutual contemporaneous practical construction of each other by two documents in all history that I know of.

    Not only does it clearly appear that there was no conflict between Section 17 and 22 in the most rabid anti-federalist never raised his voice against Section 17 declaring that all of the said Courts of the United States shall have the power to grant a new trial.

    But Congress evidently saw no conflict between the two and both of them remained in the Judicial Code until 1948.

    And I do think that that’s a considerable significance as bearing on the historical problem.

    Felix Frankfurter:

    Mr. Alderman, I don’t like to take much of your client but perhaps you can dispose of this (Inaudible) the fact of the matter is that the original three Courts, the District Court, the Circuit Court, and this Court in cases of controversies between states or might by trial court, the courts originating —

    Sidney S. Alderman:

    Yes.

    Felix Frankfurter:

    — as well as the Circuit Court, and this Court, and Court of Appeals.

    Sidney S. Alderman:

    Yes.

    Felix Frankfurter:

    Now with Section 17 exhausted from (Inaudible) if that is a continued way of saying that in all the said courts of United States, before which they are making a trial (Inaudible) Circuit Court and the three courts of United States, all cases in which they have original trial before (Voice Overlap) —

    Sidney S. Alderman:

    Only where they’re sitting (Inaudible)

    Felix Frankfurter:

    Yes.

    Sidney S. Alderman:

    That maybe one construction that might be put on it —

    Felix Frankfurter:

    Which is not way of putting it.

    Sidney S. Alderman:

    They’re not a way of putting it on our —

    Felix Frankfurter:

    You think that this Court has denied a trial.

    Sidney S. Alderman:

    Yes.

    I have found nothing in the books that would indicate any such purpose, any such construction to be put on Section 17.

    Now — if I may like —

    I suppose your opponent would say that — that the limitation is in the language in cases where there’s been a trial by jury for reasons for which new trials have usually been granted in the courts of law.

    Sidney S. Alderman:

    Yes.

    He might argue that this was not the kind of a trial that was granted at the common law.

    Which would be true at time in the appellate courts.

    Sidney S. Alderman:

    Yes.

    Since it couldn’t go up directly

    Sidney S. Alderman:

    Now I think the — of course, as Mr. Justice Frankfurter said the — the constitutional problem while it lurks in this case is here.

    If Congress hasn’t got the Constitution filed to confer this jurisdiction on the Courts of Appeals of the United States, of course, he can’t do it and you can’t construe the sections which I have referred to as conferring about it.

    I based my argument on the constitutional point squarely on Galloway against United States, the most recent case in which this Court has dealt with the Seventh Amendment problem.

    In that case Mr. Justice (Inaudible) writing for this Court, absolutely fairly assimilated as raising exactly equivalent questions of law subject to appellate review that the merit of the evidence the motion to set aside the verdict for a new trial and motion for direction of verdict and one other as raising exactly equivalent questions of law.

    This Court held that there was no inconsistency between an appellate court dealing with that kind of question of law in the Seventh Amendment.

    And throughout that case, depending of this Court stresses the fact that’s led the practice applies to a motion for a new trial to set aside the verdict and for new trial equally with direction of verdict for one of the sufficient evidence to sustain a verdict and they all (Inaudible) to the evidence.

    I take a careful consideration of that case in the light of this case will answer any constitution problem.

    I think it all really comes down to one thing.

    What is the question of law and what is what counsel referred to as a factual question?

    Or, what is a pure question of fact?

    I don’t know of any questions of law that arise except directly or indirectly out of factual situation.

    If that were not true, there would be very little for this Court or any other appellate court to decide these questions of law if you could not deal with a question which directly or indirectly proceeds from factual considerations.

    But in my opinion for a United States Court of Appeals to review and reverse a district trial judge for abuse of discretion on the ground that he has approved the verdict and refuse to set it aside which is not warranted by the evidence and write in the case and it’s beyond the bail of all reasonableness is distinctly a question of law.

    If that’d be true and I feel that it is, there’s no violation of the Seventh Amendment for the very same reason that there’s no violation of — even the original provision 22 of the Judiciary Act of 1789.

    I feel that the decision in the Galloway case is dispositive of this case on both questions.

    The constitutional question and in the statutory question here.

    And I submit that the decision below should be affirmed.

    And this — that this Court certainly should not hold that there is no appellate jurisdiction in the federal judiciary to review a trial judge for abuse of discretion on a question of criminal verdict.

    And I do invite your consideration of my review of the Court of Appeals decisions of all of the circuits.

    The ten circuits and the circuit for the District of Columbia which have been handed down since the Fairmount case in 1933, which is the last point in my brief.

    Earl Warren:

    Mr. Alderman, suppose the, suppose the Court in this case said — it said that it considered that $50 a month would’ve been all that was reasonable and they had had decided on that basis rather than $100 a month.

    Would you think then that that was something that this Court should take cognizance of?

    Sidney S. Alderman:

    I doubt very much, Mr. Chief Justice, if the Court of Appeals can pick out one figure and direct the District Court what judgment he must approved on it, the Court of Appeals viewed this from a legal standpoint and estimated the evidence to find a range of reasons, it didn’t pick out a particular and I doubt very much its power to do it.

    It reversed the District Court and sent it back to let the jury do that under proper instructions again from the District Court.

    Well now some of the Circuit Courts, forbids — excuse me sir.

    Earl Warren:

    No, go right ahead.

    Sidney S. Alderman:

    The Fifth Circuit has done that in several cases.

    They have added an additional remittitur to their remittitur in the lower court.

    I’d be somewhat dubious about defending that.

    Sidney S. Alderman:

    But merely for the Court of Appeals to reverse for abusive discretion and send back for a jury trial on the issue of damages alone, it seems to me it would be exceedingly grave for this Court to hold that there is no such appellate jurisdiction in the federal judiciary.

    Earl Warren:

    Mr. Alderman, I — I don’t want to labor it too far, but what I would like to ask is this.

    Is there in your opinion, is there any limit upon the Court of Appeals in reversing the District Court for refusing to grant a new trial?

    And if in this case, the Court had assumed that $50 was enough for as much as could have been expected to come from this boy and his parents?

    And it stated that in the opinion as it did here, the $100 basis, would you say that that is a matter we could concern ourselves with or if not $50, say $40 or $30 or $20 or $10 or any other amount, is there any limit?

    Sidney S. Alderman:

    Well, I think that puts to me the same question that I again fail to answer.

    I think this Court has the power to do what it wants to with this case.

    It can substitute its judgment for the Court of Appeals judgment on the whole view of the evidence.

    Earl Warren:

    Well suppose, just to use the same figures that some other — the justice used a little awhile ago.

    Supposed they said $1 a month is sufficient instead of $100, what — should this — should this Court then concern itself in the matter?

    Sidney S. Alderman:

    I think in that case, the petitioner would be very careful to present the question of the merits of that decision to this Court.

    Earl Warren:

    Well, I wasn’t asking exactly that question.

    Sidney S. Alderman:

    I know that.

    Earl Warren:

    I was asking whether that would be beyond —

    Sidney S. Alderman:

    I think any — any decision of any court can conceivably be ridiculous.

    Earl Warren:

    Right.

    Sidney S. Alderman:

    And erroneous for that reason.

    Earl Warren:

    Where is the dividing line in this case as you would see it?

    Does it have to be exactly $100 a month or one (Voice Overlap) —

    Sidney S. Alderman:

    I’m certain it would not say so.

    I think on all the evidence in this case, $50,000 was excessive, but I can’t undertake to settle the figure with — this Court unless it decides me to do so.

    Earl Warren:

    But can you say that — can you say that the amount of the District Court considered fair, $50,000 is unreasonable?

    Sidney S. Alderman:

    I think it was, and the Court of Appeals below thought it was conceivable we both made an error.

    Felix Frankfurter:

    Mr. Alderman, can you accomplish something even if you’re off to something (Inaudible) —

    Sidney S. Alderman:

    Well, I thank you Mr. Justice.

    I didn’t intend to.

    Felix Frankfurter:

    I do not understand your answer to the Chief Justice’s question.

    Maybe, if his question was, is the figure — if the determination by the Court of Appeals that’s suggested by the District Court was it abuse of discretion?

    Is that not in itself a reviewing question if properly presented by the (Voice Overlap) —

    Sidney S. Alderman:

    Undoubtedly.

    Felix Frankfurter:

    — certiorari.

    Sidney S. Alderman:

    Undoubtedly.

    Felix Frankfurter:

    (Inaudible)

    Sidney S. Alderman:

    I meant to say that — that in answer to that question.

    I think that’s quite correct.

    Felix Frankfurter:

    That’s a very good question, will it — on this petition that (Inaudible)

    Sidney S. Alderman:

    That’s right.

    This Court doesn’t — doesn’t ordinarily take that kind of a question up here for the —

    Felix Frankfurter:

    Well I should think that.

    Sidney S. Alderman:

    But of course it can —

    Felix Frankfurter:

    I think maybe some other will have (Inaudible)

    Sidney S. Alderman:

    Well.

    Felix Frankfurter:

    This Court has foreclose not in this case —

    Sidney S. Alderman:

    No, no no.

    Felix Frankfurter:

    — as a matter of law.

    Whether this Court is foreclosed by the determination of a Court of Appeals —

    Sidney S. Alderman:

    I don’t mean —

    Felix Frankfurter:

    — damage in the District Court is excessive.

    The answer to that clearly is no.

    Sidney S. Alderman:

    If I took that position, I would be claiming that the Court of Appeals has an arbitrary and unrevealed discretion, just as my brother is claiming that there is a perfectly arbitrary absolute and unrevealed discretion opposed in the District Court.

    Felix Frankfurter:

    You have perfectly clarified my —

    Hugo L. Black:

    Mr. Alderman may I ask you?

    Sidney S. Alderman:

    Yes please, yes.

    Hugo L. Black:

    You’ve been practicing in the Fourth Circuit —

    Sidney S. Alderman:

    Yes.

    Hugo L. Black:

    — number of years.

    Sidney S. Alderman:

    That’s my own Circuit.

    Hugo L. Black:

    Yes, I know that.

    I am wondering if you know when was the first time the Court of Appeals undertook to set aside judgments of the trial court reversing, or setting aside the jury of verdict.

    Sidney S. Alderman:

    I think Virginian Railway against Armentrout was the first case in which it actually did it.

    Hugo L. Black:

    When was that?

    Sidney S. Alderman:

    That was 1948 and I meant to comment to some extent on that case because that’s the case on which the court below relied in our case, because in the Armentrout case, it went into a very elaborate discussion of this rule of law and jurisdiction question.

    Hugo L. Black:

    I ask — I ask you that because I haven’t had a good many cases whether it had been set aside both (Inaudible)

    Sidney S. Alderman:

    Yes.

    Hugo L. Black:

    And the federal court in my Circuit when I was practicing.

    Sidney S. Alderman:

    That’s right.

    Hugo L. Black:

    And at that time, that ended.

    And has it been ending it down in your Circuit up to 1948?

    Sidney S. Alderman:

    Well, but doing the decision in the Fairmount case in 1933 and the present, I know of no such case that’s come up to this Court and the Courts of Appeals and the different Circuits had been regularly asserting and exercising this kind of jurisdiction.

    Felix Frankfurter:

    What’s merely a case that you mentioned, 140 –?

    Sidney S. Alderman:

    Virginian Railway Company against Armentrout.

    Hugo L. Black:

    It’s comparatively new so far as —

    Sidney S. Alderman:

    Yes, sir.

    Hugo L. Black:

    — the history of the judicial process in the country is concerned.

    Sidney S. Alderman:

    That’s right.

    Earl Warren:

    Thank you Mr. Alderman.

    Mr. Hammer.

    Henry Hammer:

    May it please the Court.

    I listened carefully to my opponent’s argument wherein he says, that the congressional amendments to the Judiciary Act as work they changed in the rule against non-review.

    I can’t find no place in any of those enactments where Congress says that a federal appellate court can review the factual findings of a jury.

    In fact, if they said that, it certainly would be unconstitutional under the Seventh Amendment.

    And moreover, I call to the Courts attention to the chief revises notes on Title 28, the Federal Judiciary Code, of the Honorable William M.Barron, who is the co-author of Barron & Holtzoff of the book Federal Practice and Procedure.

    And therein, he says this in no uncertain language, I haven’t cited in my brief but it’s stated in Volume 2 at page 809.

    He says this.

    And this is a statement made after the adoption of the federal codes or after the revision of the federal codes, “The principle that in a law action, the question of damages cannot be reexamined in an the appellate court for excessiveness or insufficiency, still applies in jury cases because of the Seventh Amendment for the Constitution.”

    That clearly expresses the intent of Congress in passing the Judicial Code or revising the Judicial Code.

    Earl Warren:

    Is that in your brief, Mr. — ?

    Henry Hammer:

    We do not have that in our brief, and I’m sorry I —

    Earl Warren:

    Would you send — send it to us please in form of a memo, enough copies of the Court.

    Henry Hammer:

    I will, sir.

    Henry Hammer:

    And moreover, the — at the time of the revision, facts found by a trial judge sitting without a jury were not subject to review.

    But we’ll admit that the revision did contemplate, that a federal appellate court could review facts found by a trial judge, provided however, that was not in a case where there was a jury trial.

    A counsel makes the statement to this Court.

    That the cases prohibiting federal review were based upon case law.

    I disagree with that statement thoroughly.

    Again, I wish to call the Court’s attention, to the earliest Supreme Court decision, we have found on a subject.

    In Parsons versus Bedford, cited in our brief.

    There, a bill of exceptions was complained of.

    The trial court’s refusal of appellant’s application to one of the clerks to record their testimony.

    On this application, the Court said, a whole lot therefore, of the application to the record to record the evidence, so far as at least as this Court can take cognizance of it, was to present the evidence here in order to establish the error of the verdict in matters of fact.

    And the Court went on to say, that this assignment was immaterial, because of the prohibition of the Seventh Amendment.

    The Court couldn’t consider in any event whether it was part of the record or not part of the record.

    And we quote, “but the other clause of the amendment is still more important, and we read it at a substantial and independent clause to ethical, no fact tried by a jury shall be otherwise re-examinable in any Court of the United States then according to the rules of the common law.”

    This is a prohibition to the courts of the United States to reexamine any facts tried by a jury in any other manner.

    The only modes known to the common law, to reexamine such facts or the granting of a new trial by the Court where the issue was tried or to which the record was properly returnable, or the award of the venire facias de novo by an appellate court for some error of law which intervene in the proceedings.

    Earl Warren:

    Now what citation is that please?

    Henry Hammer:

    That’s Parsons versus Bedford.

    It’s referred to on page 5 of our reply brief, 3 Peterson 443, a decision by Mr. Justice Story.

    And in the decision of Railroad Company versus (Inaudible) decided by Mr. Justice Harlan, it quoted this clause, the decision of the — of the Parsons case and relied on the fact that the constitutional prohibition does not permit a federal appellate court to review federal facts.

    Now my — I would also like to call the Court’s attention to the history of the enactment of the Seventh Amendment.

    As indicating, that it was a matter of concern at that time, to the people to have the right of trial by jury and at no fact shall be examinable in any court of United States and according to the common law.

    When the final draft of the Constitution as transmitted from the constitutional convention to Congress in 1785 was submitted — it provided this, and I quote.

    I don’t have that in my brief and I’m sorry.

    “In all other cases before I mention the Supreme Court shall have appellate jurisdiction, both as to law and fact with such exceptions and under such regulations as Congress shall make.”

    In the federal’s papers, Number 81, Hamilton pointed out this strong opposition, to allowing of appellate review of matters of fact, and then to finally meet the objections.

    Congress passed the Seventh Amendment providing that no fact filed by jury shall be reexamined by any court other than the rules of the common law.

    If the common law permitted a reexamination, and reexamination is permitted under the Seventh Amendment.

    That’s how strong the feeling was at that time against an appellate court exercising a review of factual questions.

    And we submit, that Mr. Justice Brandeis’ decision clearly indicates in the Fairmount case, that decision is rested as one of the reasons upon the prohibition of the Seventh Amendment.

    Now referring to the other question which my opponent has posed to this Court, that is whether we have presented the question properly to this Court.

    Henry Hammer:

    As Mr. Chief Justice Warren pointed out, we argued the case fully in our petition for writ of error — petition for writ of certiorari.

    We argued the facts, we talked about the facts, and we showed how the facts indicated that there was error on the part of the Court of Appeals.

    And we also call the Court’s attention that in the brief in our position —

    Earl Warren:

    You may — you may finish your statement.

    Henry Hammer:

    And the brief in our position, to the petition for writ of certiorari, the matter was fully argued by respondent.

    And how in this Court determine a question, the questions which we pose, unless they consider the subsidiary question within the meaning and intent, as I read it of the Rule 41 (d) (1) of this Court, of considering the facts in this case, it would leave the decision of this nature in a broader state.

    Felix Frankfurter:

    Why did you — why did you formulate questions presented if all counsel has to do is talking it loud and argue matters with the sustaining questions presented.

    Why did you take questions presented, because the rules require the –?

    Henry Hammer:

    Yes sir, and —

    Felix Frankfurter:

    And the rule state specifically, Rule 22, the only reason to (Inaudible) stating the questions presented for review expresses and determines the circumstance in this case and set forth, and only to questions set forth for the petition, barely supplies it when it is considered by the Court.

    Henry Hammer:

    And I —

    Felix Frankfurter:

    (Inaudible)

    Henry Hammer:

    Mr. Justice Frankfurter, I believe, in my opinion, that those questions presented in the brief, fairly stated the questions involved and it stated very clearly that this was an action under the Federal Employers’ Liability Act.

    Felix Frankfurter:

    That is what you’ve stated.

    You stated that the Court didn’t have power to touch the remittitur.

    Henry Hammer:

    In this kind of a case sir.

    Felix Frankfurter:

    Well in any kind of a case?

    Why anymore in this case or in a contract case, or a coalition case, or a libel case?

    Henry Hammer:

    Because, Mr. Justice Frankfurter, damages in this case are unliquidated, not ascertainable with mathematical certainty.

    There is no statutory limit.

    There are not more or less than an undisputed amount.

    They rest upon in absolute elements, questions which are matters to be determined and left to the —

    Felix Frankfurter:

    Well that would be to indicate what — by Justice Burton.

    That would be true in any case, and there’s no power where it’s difficult to fix money damage to consequences.

    Henry Hammer:

    That’s correct.

    In the Federal Employers’ Liability that’s exactly the kind of —

    Felix Frankfurter:

    Well (Voice Overlap) should decide in Federal Employers’ Liability, that’s in a coalition case, isn’t it?

    Henry Hammer:

    I agree with you but I call the attention to the Federal Employers’ Liability Act because in those cases the damages are unliquidated.

    Felix Frankfurter:

    And it wouldn’t — it wouldn’t be difficult, to say clearly, in any event, $50,000 is not accepted and therefore the Court of Appeals shouldn’t have touched it.

    Henry Hammer:

    Well —

    Felix Frankfurter:

    (Inaudible)

    Henry Hammer:

    I —

    Hugo L. Black:

    You’ll — you’ll think about that next time.

    Henry Hammer:

    I’ll do that, I certainly — I certainly will, but I was under the impression that it was fairly included.

    Felix Frankfurter:

    You (Voice Overlap) but we have the rule that we have that counsel can state a specific question.

    Earl Warren:

    Mr. Alderman, if you should wish to — to give us a memorandum concerning that matter that — that Mr. Hammer is going to submit, feel free to do it.

    Sidney S. Alderman:

    Thank you very much sir.