decided: July 3, 1975; As Amended July 23, 1975.
Appeal by plaintiff from judgment in his favor after two trials in the United States District Court for the Southern District of New York, the first before Walter R. Mansfield, J., who ordered a new trial unless plaintiff filed a remittitur of $30,000 from a verdict of $75,000, and the second before Marvin E. Frankel, J., who refused to set aside a $16,000 verdict as inadequate.
Friendly and Feinberg, Circuit Judges, and Lasker, District Judge.*fn*
Plaintiff Alf Reinertsen's*fn1 left thumb was crushed by a pile driver in January 1967, while he was working as a dock builder for defendant George W. Rogers Construction Corporation. Reinertsen, who was 50 years old when the accident occurred, was hospitalized for about 16 days and lost four months of work. Attempts to save the thumb failed, and most of it was amputated. Reinertsen returned to work for defendant, continuing for about three years. He allegedly left his job because his thumb was highly sensitive to the cold and damp conditions in which he had to work, but found other employment as a marine construction worker. Reinertsen's earnings remained virtually the same in all the years after the accident, except for a slight drop in the year he left defendant's employ.
Plaintiff brought an action in the United States District Court for the Southern District of New York, claiming that defendant was negligent in various respects and had furnished an unseaworthy vessel. After a jury trial before then District Judge Walter R. Mansfield, plaintiff obtained a verdict of $75,000. Finding the award "grossly excessive," Judge Mansfield granted defendant's motion for a new trial on damages alone unless plaintiff remitted $30,000 of the verdict and consented to a judgment of $45,000. When the required agreement by plaintiff was not forthcoming, the judge ordered a new trial on damages alone. This trial before Judge Marvin E. Frankel resulted in a verdict of $16,000. Plaintiff moved for a new trial on the ground that this verdict was inadequate, but the motion was denied. This appeal followed, in which plaintiff challenges both the order of Judge Mansfield granting a new trial after the first verdict and the order of Judge Frankel refusing to do so after the second, which we discuss in Part I of this opinion. Plaintiff also seeks to raise an important question of appellate jurisdiction which we discuss in Part II.
Treating the case in the procedural manner traditional in this circuit, we find little difficulty in affirming the judgment. While plaintiff is entitled to have us review Judge Mansfield's order granting a new trial unless plaintiff filed a remittitur of $30,000, Taylor v. Washington Terminal Co., 133 U.S. App. D.C. 110, 409 F.2d 145, 147 (1969), cert. denied, 396 U.S. 835, 24 L. Ed. 2d 85, 90 S. Ct. 93 (1969), we find no sufficient basis for upsetting the judge's ruling that "under all the circumstances," "the $75,000 verdict was clearly excessive and . . . a verdict of $45,000 would represent a figure at the upper limits of reason." It is true that, for reasons pointed out in Taylor v. Washington Terminal Co., supra, 409 F.2d at 147-49, less appellate deference need be accorded to a ruling of the trial judge which is opposed to the verdict than to a ruling which is in support of it, as in Dagnello v. Long Island R.R., 289 F.2d 797, 806 (2d Cir. 1961), and Grunenthal v. Long Island R.R., 393 U.S. 156, 21 L. Ed. 2d 309, 89 S. Ct. 331 (1968). See C. Wright, Federal Courts 422 (2d ed. 1970). But the Taylor opinion acknowledged that "The trial judge's view that a verdict is outside the proper range deserves considerable deference" and concluded that an appellate court should "reverse the grant of a new trial for excessive verdict only where the quantum of damages found by the jury was clearly within 'the maximum limit of a reasonable range.'" 409 F.2d at 149 (emphasis in original). See also Cosentino v. Royal Netherlands S.S. Co., 389 F.2d 726 (2d Cir.), cert. denied, 393 U.S. 977, 21 L. Ed. 2d 438, 89 S. Ct. 441 (1968). Here, in contrast to Taylor, the trial judge did not abuse his discretion in concluding that, in view of the absence of significant economic loss, a $75,000 verdict was clearly beyond the maximum limit of a reasonable range and that $45,000 would constitute such a maximum.
Even more plainly, under Dagnello and Grunenthal, we cannot properly interfere with Judge Frankel's refusal to set aside the $16,000 verdict at the second trial as inadequate. He found that verdict was "in the range of the jury's allowable discretion on this record," although he noted it was "possibly smaller than I would have returned." We agree that this was hardly a generous verdict. But, bearing in mind the restraint with which a trial judge must treat a verdict, and, in turn, the deference which we owe to a ruling supporting one, we again find no abuse of discretion. This verdict was not grossly and palpably inadequate. See Caskey v. Village of Wayland, 375 F.2d 1004, 1007 (2d Cir. 1967).
This, however, is not the end of the matter. After Judge Mansfield set aside the $75,000 verdict as too high and ordered a new trial unless plaintiff remitted $30,000, plaintiff, in a memorandum in support of a motion for reargument, indicated that if the judge should adhere to his decision, plaintiff would be willing "to waive . . . his right to a new trial and to submit, under protest, to the reduced judgment with a view to eliminating the necessity for a new trial and appealing directly from the reduced judgment." Judge Mansfield entered an order denying reargument; he adhered to his "decision to the effect that the jury's award was grossly excessive and that defendant's motion for a new trial is granted unless the plaintiff agrees to remit $30,000 of the $75,000 awarded" (emphasis in original) but did not discuss plaintiff's alternative suggestion. Plaintiff apparently then submitted a paper to the district court stating that he "hereby waives his right to a new trial so that judgment may be entered in favor of the plaintiff in the amount of $45,000.00 without, however, waiving his right to appeal from said judgment." In a petition filed with this court shortly thereafter, plaintiff alleged that the district court had "refused to enter judgment in the form professed [sic] by the plaintiff" and sought "a writ of mandamus directing the Honorable Court to enter the $45,000 award in such form that plaintiff can appeal from such judgment." The petition was denied. Reinertsen v. Mansfield, 71-1589 (June 22, 1971). Plaintiff now claims that in light of his proffered waiver he should have been allowed to appeal on the basis that he proposed and that, even though we decline to reverse Judge Mansfield's order, he should still receive the $45,000 he was willing to accept if Judge Mansfield's direction of a remittitur withstood appellate review rather than the $16,000 awarded at the second trial.
Under usual federal practice, an order granting a new trial is not appealable, Compagnie Nationale Air France v. Port of New York Authority, 427 F.2d 951, 954 (2d Cir. 1970), even if the new trial results from a refusal to accept a remittitur, see 9 J. Moore, Federal Practice para. 203.06, at 721 n. 30 (1973). Nor has the traditional rule permitted a plaintiff who filed a remittitur to appeal the judgment; the theory has been that plaintiff consented to the reduced judgment. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2815, at 106 (1973); 9 J. Moore, supra, para. 203.06, at 721 n. 31; S. Birch & Sons v. Martin, 244 F.2d 556, 562 (9th Cir.), cert. denied, 355 U.S. 837, 2 L. Ed. 2d 49, 78 S. Ct. 62 (1957). Thus, the only course generally thought to be available to a plaintiff to procure review of an order granting a new trial in the absence of a remittitur was to do what was done here, namely, to undergo the new trial and, if the result was unsatisfactory, bring up the propriety of the remittitur on appeal from the final judgment. If the appellate court held the new trial should not have been ordered, the original verdict would be restored. If it held to the contrary, the verdict on the second trial, if otherwise unassailable, would be the basis for judgment.
However, after some wavering partially traced in 9 J. Moore, supra, para. 203.06 at 722, the Fifth Circuit has arrived at the position that "if the plaintiff accepts the remittitur under protest, the final judgment entered thereon would be appealable, and the order requiring remittitur could be reviewed in that appeal." Wiggs v. Courshon, 485 F.2d 1281, 1283 (5th Cir. 1973). See also, e.g., United States v. 1160.96 Acres of Land, 432 F.2d 910 (5th Cir. 1970); 11 Wright & Miller, supra, § 2815, at 105-06 & n. 10.*fn2
The Sixth Circuit has approved the practice in a diversity case, where state procedure allowed this, on the basis that the Erie doctrine so required. Mooney v. Henderson Portion Pack Co., 334 F.2d 7 (6th Cir. 1964). We find this rationale questionable, as did the Seventh Circuit, Dorin v. Equitable Life Ins. Soc'y, 382 F.2d 73, 78-79 (7th Cir. 1967). There, the court adhered to the orthodox rule previously followed in Casko v. Elgin, J. & E. Ry., 361 F.2d 748, 751 (7th Cir. 1966), although the opinion writer, Judge Fairchild, expressed a personal preference for "a rule more liberal to the plaintiff." The Sixth Circuit, however, remains unrepentent. Manning v. Altec, Inc., 488 F.2d 127, 130-31 (6th Cir. 1973).
The only cases touching on the problem in this circuit have arisen in the context of attempted cross-appeals by plaintiffs (who had accepted a remittitur) after defendants had appealed the judgments for usual reasons. In this situation, this court has taken apparently contradictory positions on the allowability of the cross-appeal.*fn3 In Burris v. American Chicle Co., 120 F.2d 218, 223 (2d Cir. 1941), an opinion by Judge Chase expressed reservations about reviewing a plaintiff's cross-appeal from a judgment entered after remittitur, but then dismissed the cross-appeal on the merits because the trial court had not abused its discretion. However, in Mattox v. News Syndicate Co., 176 F.2d 897, 904 (2d Cir.), cert. denied, 338 U.S. 858, 94 L. Ed. 525, 70 S. Ct. 100 (1949), where also the ...