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Faudree v. Iron City Sand & Gravel Co.

April 4, 1963

HILLIS W. FAUDREE, APPELLEE,
v.
IRON CITY SAND & GRAVEL COMPANY, APPELLANT.



Author: Augelli

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.

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 above-entitled 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.

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.

The first is that the verdict, as rendered, is a nullity because it was indefinite, improper and contrary to the instructions of the court.

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.

The trial judge, in a comprehensive charge,*fn1 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 "[bulk] them together, if you find all exist and you find in favor of plaintiff and against defendant in the sum of blank dollars".

The main thrust of defendant's argument is directed against the $45,000.00 award.*fn2 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.

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,*fn3 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.

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 ...


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