Hillis W. Faudree v. Iron City Sand & Gravel Company, 315 F.2d 647, 3rd Cir. (1963)

315 F.
2d 647
Hillis W. FAUDREE, Appellee,

v.
IRON CITY SAND & GRAVEL COMPANY, Appellant.
No. 13964.
United States Court of Appeals Third Circuit.

Argued November 5, 1962.
Decided April 4, 1963.
1
Robert E. Wayman, Pittsburgh, Pa. (Dickie, McCamey, Chilcote & Robinson,

Pittsburgh, Pa., on the brief), for appellant.
Louis C. Glasso, Pittsburgh, Pa., for appellee.
Before GANEY and SMITH, Circuit Judges, and AUGELLI, District Judge.
ANTHONY T. AUGELLI, District Judge.
This is an appeal from a judgment entered on a jury verdict in favor of plaintiff

for personal injuries sustained as a result of defendant's negligence, following
denial of a motion for a new trial.
The action was brought under the Jones Act, 46 U.S.C.A. 688. There is no
substantial dispute concerning the manner in which the accident happened. On
February 28, 1956, the date on which plaintiff was injured, he was in the
employ of defendant as Chief Engineer aboard the vessel M/V Prosperity,
owned and operated by defendant, which vessel was then in navigation. At
about 8:30 P.M. on said date of February 28, plaintiff, in the performance of his
duties aboard the vessel, was in process of cleaning out a clogged suction line
by means of compressed air. The suction line was used to draw water from the
river into the vessel where the water, after passing through a strainer, would be
used for sanitation and other purposes. A fellow employee, who had been
instructed to turn on the air when a prearranged signal was given by plaintiff,
did so before such signal was given, with the result that the sand, dirt and other
debris that had accumulated in the suction line was expelled therefrom, striking
plaintiff in the face and causing him to fall backward and hit his head against an
angle iron.
7
The trial resulted in a verdict, signed by all of the jurors, which verdict, in
handwriting, read as follows:
"And now, to wit: Nov. 8th, 1961, we, the Jurors empanelled in the aboveentitled case, find that the Iron City Sand & Gravel Co. was negligent & we
find that we the undersigned agree to award Hillis W. Faudree $45,000 for
inability to fully fulfill his duties & $10,000 for pain and suffering caused by
his accident due to this negligence."
Pursuant to this verdict the court below directed the Clerk to enter judgment in
favor of plaintiff and against defendant in the sum of $55,000.00, together with
costs. On November 11, defendant filed a motion for a new trial. This was
denied on January 23, 1962, and on that date the court made a final order that
judgment be entered "in favor of Hillis W. Faudree, plaintiff, and against Iron
City Sand and Gravel Company, defendant, in the amount of $55,000.00
together with costs." The appeal to this Court followed.
10
The grounds urged here for reversal are the same as those argued below for a
new trial. We shall consider them in the same order in which they appear in
defendant's brief.
11
The first is that the verdict, as rendered, is a nullity because it was indefinite,
improper and contrary to the instructions of the court.
12
In support of these contentions defendant argues that the verdict is couched in

language that has no meaning in the law; that the jury failed to follow the
instructions of the court as to items of damage to be considered; that the
$45,000.00 award made to plaintiff for "inability to fully fulfill his duties" was
not specifically made as compensation for either lost wages or for impairment
of earning power; and that "inability to fully fulfill * * * duties", is not an item
of damages cognizable under the law.
13
The trial judge, in a comprehensive charge, 1 properly instructed the jury on the
law governing liability in this type of case, and then told the jurors that if they
found liability to exist, they could consider the following elements of damages:
(a) loss of wages; (b) impairment or diminution or reduction of plaintiff's ability
to work and earn money; and (c) pain, suffering and inconvenience. Each of
these elements, and the factors to be considered in determining whether or not
an award should be made with respect to any one of them, was fully explained
to the jury. At the conclusion of the charge the court, referring to the three
elements of damages, instructed the jury to "[b]ulk them together, if you find
all exist and you find in favor of plaintiff and against defendant in the sum of
blank dollars".
14
The main thrust of defendant's argument is directed against the $45,000.00

award.2 This award, says defendant, was not specifically made as compensation
for either lost wages or for impairment of earning power; it was made to
compensate plaintiff for his "inability to fully fulfill his duties". Defendant calls
attention to the fact that neither this nor any similar language was used by the
trial judge in his instructions to the jury on the damage elements involved in
the case, and argues that such language cannot be construed as compensation
for impairment of earning power. We do not agree.
15
The record shows that at most plaintiff lost from 7 to 10 days work from the
date the accident happened on February 28, 1956, until the Spring of 1961,
when plaintiff's job was terminated. It does not appear from the language used
by the jury in its verdict that any award was made for lost wages. An award
was made for pain and suffering. The remaining element of damages the jury
was called upon to consider and determine had to do with plaintiff's claim that
he suffered an impairment of earning power notwithstanding increased earnings
following the accident. Our consideration of the verdict, viewed in the light of
the testimony adduced at the trial,3 satisfies us that the jurors did understand the
court's instructions as they related to the different damage elements involved in
the case, and that they intended to award to plaintiff the sum of $45,000.00 to
compensate him for an impairment of earning power sustained as a result of the
accident.
16
It is well settled that no particular form of words need be used by a jury in

rendering its verdict. Any words which clearly convey the meaning and
intention of the jury are sufficient. "The test is whether the verdict clearly
manifests the intention and finding of the jury upon the issue submitted to
them." Smyth Sales v. Petroleum Heat & Power Co., 141 F.2d 41 (3 Cir.,
1944). See also 53 Am.Jur., Trial, 1050. We believe the language used by the
jury is sufficiently expressive of an intention to make an award for impairment
of earning power. Moreover, it is to be noted that defendant failed to object to
the form of the verdict or move for a clarification thereof before the jury was
discharged.4
17
The second ground urged for reversal is that the verdict is excessive and against
the weight of the credible evidence.
18
Under this head defendant argues that if the $45,000.00 award to plaintiff is
construed as compensation for an impairment of earning power, it is excessive
and wholly without support in the record. Counsel for defendant concedes that
the court correctly instructed the jury that the law permits compensation for an
impairment of earning power proximately caused by defendant's negligence;
that such impairment might exist despite the fact that plaintiff's earnings
increased following his injury; and that the measure of damages for impairment
of earning power was the difference between what plaintiff was capable of
earning before the accident as compared with his ability to work and earn
money after the accident. But the insistence is that there is no evidence in the
record to indicate that plaintiff's capacity to earn money was impaired as a
proximate result of defendant's negligence.
19
At this point we may note that defendant's negligence was not very seriously
contested. The witness called by defendant on the issue of liability admitted he
misunderstood the signal that had been agreed upon for turning on the
compressed air and that, as stated in the pretrial stipulation of facts, he "turned
on the air by his own mistake". The real battle was fought over the nature and
extent of plaintiff's injuries and the causal relation between such injuries and
the accident. Defendant lays great stress on the testimony that showed plaintiff
continued to work for five years following the accident; that he received very
little medical attention for the greater part of this period; that there was no
substantial difference between the diagnosis made by plaintiff's treating
physician and that made by defendant's examining doctor; and that the only
testimony as to any disability came from doctors who began treatment of
plaintiff some 4 years after his accident.
20
We have read the entire record and are satisfied there was ample evidence to
sustain the verdict. At the time of trial plaintiff was 36 years old and had a life
expectancy of 35.9 years. Following the accident and until his employment
with defendant terminated in June, 1961, plaintiff earned about $10,000.00 a
year. Plaintiff testified concerning the pain, suffering and inconvenience he
experienced while still working for defendant after the occurrence of the
accident, and said the only reason he could continue to work was because
tranquilizers kept him going. Plaintiff also related the efforts he made to secure
other employment, and that at least at one plant where he sought work he was
refused an application because of his condition.
21
The medical testimony was in sharp conflict, but this was a matter for the jury
to resolve. There was testimony that plaintiff, as a result of his accident had
sustained a fractured skull, and a head and neck injury with a partial blockage
or occlusion of the left carotid artery; that this condition of partial blockage or
occlusion (said to be permanent) resulted in a deficient blood supply to the left

side of the brain, producing a sensation of weakness and dizziness on bending
forward; that advancing years, coupled with arteriosclerosis, may aggravate this
condition and bring about further occlusion, so that a sudden head movement or
twisting could produce a speech defect and paralysis.5 There was further
testimony concerning permanent damage to plaintiff's hearing mechanism;
permanent injury to one of the cranial nerves involving hearing and balance;
traumatic neurosis; and other ill effects that could be considered to bear on
impairment of plaintiff's economic horizon, including plaintiff's inability to
work under conditions where he would be exposed to loud noises. There was
other testimony that plaintiff was totally and permanently disabled from
performing his former duties as a chief engineer on a diesel vessel of the type
on which he worked prior to his accident, and also that he was from 30% to
50% disabled for general employment.
22
As is recognized by counsel for defendant, the question of excessiveness of a

verdict is primarily a matter addressed to the sound discretion of the trial judge.
It certainly cannot be said, on the basis of the record before us, that the court
below committed an abuse of discretion in refusing to grant defendant a new
trial on the ground of excessiveness. Trowbridge v. Abrasive Co., 190 F.2d 825
(3 Cir., 1951); Lebeck v. William A. Jarvis, Inc., 250 F.2d 285 (3 Cir., 1957).
23
The third and last point argued for reversal is that the comments and conduct of
the trial judge were highly prejudicial to defendant.
24
We have, in our examination of the record, noted the several exchanges that
took place between the court and counsel and between counsel. The trial was a
sharply contested affair. At different times during the course of this heated
proceeding, the conduct of counsel merited the admonitions directed to either or
both of them by the court. No useful purpose would be served by detailing the
clashes that took place. Suffice it to say we do not believe, in the light of this
record, that the comments and conduct of the trial judge, viewed as a whole and
in context, resulted in any prejudice to defendant. The role of a trial judge was
well stated in the case of Kettenbach v. United States, 202 F. 377, 385 (9 Cir.,
1913), and repeated in Russell v. Monongahela Railway Company, 262 F.2d
349, 353 (3 Cir., 1958):
25
"The trial judge in a federal court is not a mere presiding officer. It is his
function to conduct the trial in an orderly way with a view to eliciting the truth,
and to attaining justice between the parties. It is his duty to see that the issues
are not obscured, that the trial is conducted in a proper manner, and that the
testimony is not misunderstood by the jury, to check counsel in any effort to
obtain an undue advantage or to distort the evidence, and to curtail an

unnecessarily long and tedious or iterative examination or cross-examination of
witnesses."
26
Finally, it should be noted that at no time during the trial did defendant's
counsel take exception to any remark made by the trial judge, nor did he made
any formal objection to any of the matters he now contends were so prejudicial
as to justify the granting of a new trial. If in fact defendant's counsel felt
aggrieved by the alleged prejudicial comments and conduct, he should have
called the matter to the court's attention so as to give the court an opportunity to
take corrective action.
27
For the reasons stated the judgment below will be affirmed.
Notes:
1
No exceptions to the charge were taken by defendant's counsel and when, at the
close thereof, he was asked if he had any additional instructions he wanted the
court to give the jury, counsel said he had none
No special point is made by defendant of the jury's failure to follow the court's
instructions to bulk together such items of damage as were found to exist; nor
does defendant specifically complain about the award of $10,000.00 made to
plaintiff for pain and suffering
At the trial plaintiff testified concerning the nature of his employment, the
difficulties he experienced in performing his usual duties as chief engineer
following the accident, the assistance he needed and received from others in
order to enable him to do his work, the prolonged use of tranquilizers to help
him continue to carry on, and efforts made to secure other employment. This
and similar testimony all pointed to an impairment of plaintiff's earning power
After the jury returned its verdict and after the court directed the Clerk to enter
judgment in favor of plaintiff and against defendant for $55,000.00, defendant's
counsel requested the court to poll the jury. This was done and resulted in a
confirmation of the verdict by each juror. Asked by the court at the conclusion
of the poll if there was anything else he desired, counsel made no response,
whereupon the jury was discharged. See Northern Pacific Railroad Co. v. Urlin,
158 U. S. 271, 15 S.Ct. 840, 39 L.Ed. 977 (1895)
One of the doctors who testified for plaintiff stated that carotid artery blockage
could be caused by trauma or arteriosclerosis. The doctor gave it as his opinion

that in plaintiff's case the condition was caused by trauma and not
arteriosclerosis. Prognosis was serious, he said, because as people grow older
they develop arteriosclerosis, and if this is added to plaintiff's injury, the
chances of a stroke are quite strong

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315 F.

Hillis W. FAUDREE, Appellee,

United States Court of Appeals Third Circuit.

Robert E. Wayman, Pittsburgh, Pa. (Dickie, McCamey, Chilcote & Robinson,

Louis C. Glasso, Pittsburgh, Pa., for appellee.

ANTHONY T. AUGELLI, District Judge.

This is an appeal from a judgment entered on a jury verdict in favor of plaintiff

In support of these contentions defendant argues that the verdict is couched in

The main thrust of defendant's argument is directed against the $45,000.00

It is well settled that no particular form of words need be used by a jury in

occlusion (said to be permanent) resulted in a deficient blood supply to the left

As is recognized by counsel for defendant, the question of excessiveness of a

obtain an undue advantage or to distort the evidence, and to curtail an

For the reasons stated the judgment below will be affirmed.

could be caused by trauma or arteriosclerosis. The doctor gave it as his opinion

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