Guthrie

(concurring).

I agree that the judgment in this case should be affirmed but I think that we should also specifically overrule our Le-pisto case. The doctrine of that old case lacks support in pronouncements of the Supreme Court and only one Circuit seems to have relied on it as authority for the principle that a federal appellate court may arbitrarily reduce the size of a verdict merely because it regards it as excessive.

After our decision in Southern Pacific Company v. Guthrie, 9 Cir., 180 F.2d 295 , we granted a rehearing limited to the questions “whether the damages are excessive, and if so, what the action of the court should be.” The argument upon rehearing was before the court sitting in bank.

The facts relating to the character and extent of Guthrie’s injuries, and his loss of prospective earnings, are stated in the former opinion. There the court attempted to arrive at a conclusion as to the limit of permissible award for the loss of expected earnings. It is apparent that this item of pecuniary loss is much more susceptible of calculation than those items of damages coming within the description of pain, suf *927 fering, inconvenience and disfigurement. In order properly to appraise the verdict, the court, in the earlier opinion, undertook to discover the maximum possible allowance for the loss of earnings, assuming that the balance of the total verdict must be charged to the non-pecuniary losses, pain, suffering, etc.

In attempting to evaluate the evidence as to the damage resulting from lost earnings we found ourselves compelled to deal with a record devoid of evidence as to the…

(dissenting).

I dissent. The court’s opinion holds that a wrong was done the appellant, in that the verdict is for more money than it owes the appellee. That the amount is substantially more than appellant should pay we are agreed. To say that such a substantial sum is not grossly excessive and hence deny appellate relief is to me a technical mockery of that justice which we are required to give a litigant by provisions of 28 U.S.C.A. § 2106 . That section reads: “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 appro *934 priate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.”

To me it seems no exaggeration to apply the term “monstrous” to such a concept of American justice. To put it otherwise, there is no more reason not to set aside a finding of the amount of damages in a verdict which the evidence shows is substantially larger than the actual damage, than there is not to set aside a verdict because the finding of…

(dissenting).

I dissent. There can be no monetary figure which really compensates for the loss of a limb and for the pain and suffering, both past and in the future, deriving therefrom. And we must view this case from the standpoint of compensation and not from any standpoint of punishment or resentment against the defendant or from sympathy for the plaintiff. While I fully realize the touchiness of a court’s interference with a jury’s judgment, I cannot believe that our system of jurisprudence places everybody’s material fortune, such as our free enterprise enables us to accumulate, at the unbridled whim of any twelve men and women no matter how good and true they may be. There must be some semblance of a basis for estimating the sum of money which one causing an injury must be compelled to pay to put the injured party in as good a fortune as he could be expected to be in had he not suffered the injury, plus, of course, a generous sum for pain and suffering.

Without such a basis reasonably applied I believe no judgment can validly stand. I cannot go along with the so-called “Monstrous” doctrine. It seems to me that by adopting it we give up all attempt to square the judgment…

186 F.2d 926 SOUTHERN PAC. CO. v. GUTHRIE. No. 12164. United States Court of Appeals, Ninth Circuit. Jan. 15, 1951. Writ of Certiorari Denied April 9, 1951. A. B. Dunne and Dunne & Dunne, all of San Francisco, Cal., for appellant. Thomas C. Ryan, Daniel V. Ryan and Ryan & Ryan, all of San Francisco, Cal., for appellee. Before the Court sitting in bank. POPE, Circuit Judge. 1 After our decision in Southern Pacific Company v. Guthrie, 9 Cir., 180 F.2d 295 , we granted a rehearing limited to the questions 'whether the damages are excessive, and if so, what the action of the court should be.' The argument upon rehearing was before the court sitting in bank. 2 The facts relating to the character and extent of Guthrie's injuries, and his loss of prospective earnings, are stated in the former opinion. There the court attempted to arrive at a conclusion as to the limit of permissible award for the loss of expected earnings. It is apparent that this item of pecuniary loss is much more susceptible of calculation than those items of damages coming within the description of pain, suffering, inconvenience and disfigurement. In order properly to appraise the verdict, the court, in the…