Before STALEY and HASTIE, Circuit Judges, and SORG, District Judge.
This litigation has resulted from the effort of the plaintiff Lebeck to recover damages for permanently disabling injuries caused by a severe electric shock suffered while working as a pipelayer. Various claims and cross and third-party claims were consolidated in one trial. Lebeck sought to recover against William A. Jarvis, Inc., Levitt and Sons, Inc., Crane Operating Co., Inc., Philadelphia Electric Co. and Levittown Supply Corp., corporations which will from time to time be designated as Jarvis, Inc., Crane, Levitt, the Electric Company and the Supply Corp.
At the conclusion of the trial a verdict was directed for Supply Corp. as Lebeck's employer. The verdict of the jury exonerated the Electric Company as blameless in connection with the accident. No appeals have been taken from these rulings. On the other hand, a $350,000 verdict was returned against Jarvis, Inc., and Levitt, and each of these corporations has appealed from the judgment entered thereon. The same verdict was entered thereon. The same verdict was entered against Crane, but the district court ordered a new trial and later, when the plaintiff indicated that he did not propose to offer any new evidence against Crane, dismissed the action as against that defendant. Both the plaintiff and Levitt now contend that the district court exceeded its power and abused its discretion in ordering a new trial as to Crane. Finally, Levitt is also appealing judgments which denied its claims for indemnity and contribution against Jarvis, Inc., and Crane.
The accident in suit occurred during work to provide drainage facilities for the vast new housing development known as Levittown, Pennsylvania. The developer, Levitt, utilized the services of Jarvis, Inc., as an independent general contractor to carry out part of this undertaking. Jarvis, Inc., Crane and the Supply Corp. were three distinct corporate entities, each organized by William A. Jarvis who was and remained their sole stockholder. All three corporations participated in some manner and degree in the performance of the work for which Jarvis, Inc., was the general contractor.
The accident occurred on land owned by the Electric Company and under a high voltage transmission line of that company. The Electric Company had granted Levitt an easement to construct drainage facilities across its land, it being agreed that Levitt would notify the Electric Company when this work was about to begin. It is admitted that no such notice was given.
During the course of this operation the plaintiff was working in a ditch using a crowbar in the laying of pipe. A crane was also being used to facilitate the handling of the pipe. Transmission wires carrying some 19,000 volts of electricity were overhead. In some manner current passed from the wires through the crane and the metal bar into the body of Lebeck causing permanent and totally disabling injuries. The present litigation followed with the plaintiff attempting to show that one or more of the Jarvis owned corporations operated the crane negligently and also induced plaintiff to work in an unsafe place by falsely representing that the wires overhead were not charged. Levitt was charged with negligent failure to notify the Electric Company of the work being performed under its wires so that appropriate precautions could be taken. Answering special interrogatories the jury found that active and primary negligence of both Jarvis, Inc., and Levitt caused the accident.
The Primary Liability of William A. Jarvis, Inc.
A principal contention on the appeal of Jarvis, Inc., is that the $350,000 verdict returned against it, for what unquestionably were extraordinarily severe, horribly mutilating and totally disabling injuries to a thirty-four year old workman, was so obviously excessive that the refusal of the trial judge to disturb that verdict on motion for new trial should be reversed on this appeal. Moreover, because this is a diversity case, the appellant urges that the judicial handling of this entire question of excessiveness of the verdict should be treated as a matter of state law and patterned after such modes and attitudes as Pennsylvania decisions reveal. However, this contention involves a misconception of the judicial task in this situation. True, in administering diversity jurisdiction a federal trial court properly applies state rules in instructing the jury as to the measure of damages or, more particularly, in identifying these items of injury or loss which may legally be recovered as damages. But otherwise, any claim that the verdict has been excessive requires a trial court to decide no more than whether the jury has reached a result which could rationally and dispassionately be reached by laymen on the basis of evidence relevant to the several categories of legally recoverable damage. This is no more a question of law than is a judge's ruling whether a verdict is against the weight of the evidence. It is merely a form and procedure of judicial control over arbitrary action in fact finding. It may well be that experience with other cases and familiarity with rulings of other judges upon other verdicts has helped shape the trial judge's conception of the limits of an honest and rational award in the circumstances of the case at hand. But such exercise of professional judgment and judicial discretion is not the application of any rule of law, state or federal.
Such an exercise of judgment as to the reasonableness of the verdict was required of the trial court in this case. That court rejected the claim of excessiveness in a reasoned opinion, noting particularly that in this case mutilations attended by extreme past and prospective pain, suffering and humiliation were evidenced and loomed large in the catalog of recoverable items.Nothing appears or has been suggested to indicate that in so ruling the court acted arbitrarily. Rather it seems clear that, weighing considerations pro and con, the trial judge exercised his best judgment as to the possible size of a rational verdict in the light of all of the evidence. And that is the extent of our concern as a reviewing court. For our inquiry goes only to the question whether the trial court has exercised discretion in a judicial manner in disposing of this aspect of the motion for a new trial. Cf. Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825; Brest v. Philadelphia T.C., 3 Cir., 1954, 216 F.2d 331. Beyond that, it is not our privilege to substitute our judgment for that of the trial court as to the maximum amount which will provide fair recompense for injuries which cannot be equated in any mathematical way with any number of dollars. Scott v. Baltimore & O. Ry., 3 Cir., 1945, 151 F.2d 61. Our authority in this situation is very limited and the Supreme Court has recently indicated that its exercise must be confined strictly. Neese v. Southern Ry., 1955, 350 U.S. 77, 76 S. Ct. 131, 100 L. Ed. 60; Snyder v. United States, 1955, 350 U.S. 906, 76 S. Ct. 191, 100 L. Ed. 796, reversing per curiam United States v. Guyer, 4 Cir., 1954, 218 F.2d 266. The sum of the matter is that we could not lawfully disturb this verdict if we would, and we would not, if we could.
The remaining issues raised by appellant Jarvis, Inc., can be stated briefly, and as briefly resolved. It is urged that the denial of this appellant's motion for new trial was an abuse of discretion because the evidence showed that plaintiff was an employee or, under Pennsylvania law, a statutory employee of Jarvis, Inc. Yet neither of these points was presented to the district court in particularization of movant's general assertion that the verdict was against the weight of the evidence. There may arise in the future some extraordinary case in which it will be an abuse of discretion not to grant a new trial for some obvious evidentiary deficiency which the movant for new trial has failed to point out to the court. But this is certainly not such a case. Indeed, a substantial controversy arises on the record as to the proof of facts essential to make the plaintiff either an employee or a statutory employee of Jarvis, Inc. So, even had appellant's present contentions been urged below as grounds for a new trial, to adjudicate them again on appeal would require a reweighing of the evidence which is beyond our province. Cf. Miller v. United States, 3 Cir., 1943, 137 F.2d 592; Magee v. General Motors Corp., 3 Cir., 1955, 220 F.2d 270.
For these reasons the appeal of Jarvis, Inc., from the judgment against it fails.
The Dismissal as Against Crane Operating Co., Inc.
We next consider the way in which the court below disposed of the claim against Crane Operating Company, Inc. Both the plaintiff and Levitt have appealed from the judgment dismissing the plaintiff's claim against Crane. They seek thereby to challenge the new trial order which led to the dismissal of this claim. The plaintiff, at least, has standing to complain of this new trial order. He advances two contentions; that the court exceeded its power in granting a new trial and that, in any event, it abused its discretion.
The jurisdictional question depends upon the application of Rule 59, Federal Rules of Civil Procedure, 28 U.S.C. to the facts of this case. Under that rule a new trial may be granted pursuant to a motion served within ten days after judgment. Or, the court may act on its own initiative, provided the new trial order is entered not more than ten days after judgment. In this case the order for a new trial was entered some four months after judgment. The plaintiff says that this was untimely action by the court on its own initiative, while Crane insists that the order was issued pursuant to its timely motion for a new trial.
Crane had filed a motion for new trial within ten days after judgment. One of the several grounds stated therein was that "the verdict and the special verdict of the jury were against the weight of the evidence." Two broad issues of fact relevant to the claim against Crane had been contested at the trial. There was a question whether the conduct of certain persons in connection with this accident had been negligent. There was a separate factual issue whether these persons were acting as employees of Crane at the time. In its brief and argument on the motion for a new trial Crane urged that the finding that its alleged employees were negligent was against the weight of the evidence, but said nothing about the master-servant issue.The court, after deliberate consideration of the record, was not persuaded on the point Crane had briefed and argued but did conclude that the finding of agency was against the weight of the evidence. Accordingly, the court granted a new trial, stating that its action was taken pursuant to Crane's motion. Plaintiff now insists that this cannot be correct, arguing that in legal contemplation the motion is no broader than the particular evidentiary insufficiency argued in its support.
In effect we are asked to extend the doctrine of Freid v. McGrath, 1942, 76 U.S.App.D.C. 388, 133 F.2d 350. In that case a motion had been made for a new trial on the ground that the verdict was a mistake and not the true verdict of the jurors. The court granted a new trial on the ground that the award was inadequate. On appeal the majority opinion reasoned that the court's action was necessarily on its own initiative because the motion as made did not cover the ground upon which the court acted. The dissenting judge and, more recently, a leading writer in this field have considered this legalism an unnecessarily strict construction of Rule 59 which imposes an undesirable limitation on the power of a trial court to achieve substantial justice. See 6 Moore, Federal Practice, 2d ed. 1953, 3850. But the only other Court of Appeals which has considered this problem has followed the reasoning which prevailed in the District of Columbia. Kanatser v. Chrysler Corp., 10 Cir., 1952, 199 F.2d 610, certiorari denied 344 U.S. 921, 73 S. Ct. 388, 97 L. Ed. 710; Marshall's U.S. Auto Supply, Inc. v. Cashman, 10 Cir., 1940, 111 F.2d 140, certiorari denied 311 U.S. 667, 61 S. Ct. 26, 85 L. Ed. 428.
It is now urged, that, beyond accepting the Freid doctrine, we should extend it so that no new trial order will be deemed responsive to a motion for a new trial unless it reflects a point briefed and argued in support of the motion as well as ground stated in more general terms in the motion itself. This must be appellant's position since in this case the motion complained that the verdict was against the weight of the evidence and a new trial was ordered on that general ground. We can find no mandate in the rule and no reason in policy for this extreme restriction on the exercise of a salutary judicial power which is a normal feature of post-trial procedure. Therefore, without ruling on the merits of the Freid doctrine itself, we decide merely that it does not reach such a situation as this case presents. Cf. Citizens Nat. Bank of Lubbock v. Speer, 5 Cir., 1955, 220 F.2d 889.
Little need be said about the separate contention that the trial court abused its discretion in granting Crane a new trial. The court thought that the evidence which indicated that the negligent persons were not acting as Crane's employees was so much more persuasive than the evidence to the contrary that a new trial should be granted. There was significant evidence looking both ways on this issue. On the appeal of Jarvis, Inc., from the order denying it a retrial in this case we agreed with the plaintiff that it was not our function to reweigh conflicting evidence after the trial court had denied a motion to set aside a verdict as against the weight of the evidence. By ...