The Court of Appeals, for insufficiency of evidence and
prejudicial errors, reversed a judgment for petitioner in a
wrongful death action brought in a federal District Court where
jurisdiction was based on diversity of citizenship and amount in
controversy, and remanded the case to the District Court with
instructions for entry of judgment for respondent, or for a new
trial if petitioner could show that, on another trial, there would
be sufficiently probative evidence to warrant submission of the
case to the jury. The District Court, on remand, denied
petitioner's motion for a new trial, holding that the additional
evidence would be inadmissible under the hearsay rule; and the
Court of Appeals affirmed.
Held:
1. This Court, upon review of the second judgment, may consider
all the substantial federal questions determined in the earlier
stages of the litigation. P.
377 U. S.
153.
2. The evidence was sufficient under any appropriate standard,
state or federal, to support the jury's verdict, and no errors
affecting substantial justice occurred at the trial. Pp.
377 U.S. 154-156.
316 F.2d 635, reversed and remanded.
PER CURIAM.
Petitioner brought a wrongful death action against respondent in
the United States District Court for the Eastern District of
Louisiana. Jurisdiction was based on diversity of citizenship and
amount in controversy. The jury returned a verdict for petitioner
in the amount of
Page 377 U. S. 153
$25,000, and the trial court denied respondent's motions for a
new trial and for judgment notwithstanding the verdict.
On appeal, a panel of the United States Court of Appeals for the
Fifth Circuit reversed the judgment. The court held that the
evidence was insufficient to sustain the verdict of the jury, and
remanded the case to the District Court
"with directions to enter a judgment for the defendant unless
plaintiff . . . makes a satisfactory showing that on another trial
evidence of sufficient probative force to justify submission of the
cause to the jury will be offered, in which event the judgment
shall be for a new trial."
262 F.2d 754, 761. The court also held that there were
prejudicial errors in the conduct of the trial which would have
required a new trial even if there had been sufficient evidence.
262 F.2d, at 758-759. At that stage in the litigation, this Court
denied a petition for a writ of certiorari. 359 U.S. 983.
Petitioner then submitted to the District Court additional
evidence in support of a motion for a new trial. The district
judge, regarding himself bound by the ruling of the Court of
Appeals that the evidence adduced at trial was insufficient, denied
the motion on the ground that the additional "evidence, while
persuasive, would be inadmissible in a new trial under the hearsay
rule." The Court of Appeals sitting en banc, over the dissent of
four judges, affirmed the denial of a new trial. 316 F.2d 635.
Petitioner then sought, and we granted, a writ of certiorari. 375
U.S. 920.
We now "consider all of the substantial federal questions
determined in the earlier stages of the litigation . . . ,"
Reece v. Georgia, 350 U. S. 85,
350 U. S. 87,
for it is settled that we may consider questions raised on the
first appeal, as well as "those that were before the court of
appeals upon the second appeal."
Hamilton-Brown
Page 377 U. S. 154
Shoe Co. v. Wolf Bros. & Co., 240 U.
S. 251,
240 U. S. 257.
Cf. Urie v. Thompson, 337 U. S. 163,
337 U. S.
171-173;
Messinger v. Anderson, 225 U.
S. 436,
225 U. S.
444.
We consider first the alleged errors in the conduct of the
trial. The Court of Appeals deemed the trial court's instruction
regarding circumstantial evidence to be "highly prejudicial error"
because it included a statement that "[t]he testimony of all of the
witnesses for the plaintiff has made out what we call in law a
circumstantial case. . . ." 262 F.2d at 758. But as soon as this
was called to the court's attention, the following instruction was
given:
"What I meant to say was that the witnesses for the Plaintiff .
. . have sought to make out . . . through their evidence a
circumstantial case. The question as to whether or not the case of
the Plaintiff has been proved is for the jury to determine."
There was no objection to this reinstruction. We conclude that
it properly stated the law, and that it would have remedied any
erroneous impression the jury may have received from the first
instruction. The Court of Appeals also held that the trial judge
committed a "grievous" error by permitting the introduction of
certain hearsay evidence.
Id. at 757. Counsel for the
respondent did not object to this evidence, but in fact elicited
the same evidence in his examination of the witness. On this
record, the admission of the evidence cannot be deemed a
deprivation of "substantial justice," Rule 61, Fed.Rules Civ.Proc.
Finally, the Court of Appeals held that the inflammatory nature of
the opening statement of petitioner's counsel required a new trial.
Counsel told the jury that he would establish that respondent "was
a hit and run driver," with "a complete disregard for . . . life."
Id. at 758. In the context of this case, however,
Page 377 U. S. 155
those remarks do not seem significantly outside the bounds of
permissible advocacy. If respondent knowingly struck the deceased,
then he was a hit-and-run driver with little regard for human life,
for it was undisputed that the driver of the automobile that hit
the decedent did not stop to render aid or to report the
accident.
Our examination of the trial record reveals not only that there
were no errors affecting substantial justice, but also that the
trial judge conducted the trial with scrupulous regard for the
litigants' rights.
We must consider next the sufficiency of the evidence adduced at
trial. Our examination of the record indicates that the jury could
reasonably have found the following facts: decedent's body was
discovered on an island on the right side of a blacktop road; the
body was two or three feet off the edge of the road; near the body,
tire marks ran off the road for some distance; death resulted from
a violent blow; the time of death was fixed at about 7:30 p.m.; the
road was the only highway leading from the island to the
respondent's home; the respondent had spent that afternoon at a bar
on the island, and had consumed between 8 and 10 drinks of whiskey;
he left the bar at about 7:30 p.m., and drove toward his home on
the road on which decedent was killed; at the time of decedent's
death, few people were traveling that highway; on the day following
the accident, respondent's automobile was without a right headlight
rim, and bore marks of a recent blow to the right headlight and to
the right front of the hood; some blue coloring which "had an
appearance that it could have been done by clothing . . . " was on
the hood; the decedent was wearing blue coveralls when he was
struck; a towel with red stains which appeared to be blood was
found concealed between the driver's seat and seat cover; particles
which looked like hair were found underneath
Page 377 U. S. 156
the right side of the car; and the automobile was covered with a
white substance which appeared to be a film of soap left after a
washing.
We believe that the Court of Appeals erred in concluding that
this evidence was insufficient to support the jury verdict. The
evidence was sufficient under any standard which might be
appropriate -- state or federal.
See Dick v. New York Life Ins.
Co., 359 U. S. 437,
359 U. S.
444-445. The jury's verdict, therefore, should not have
been disturbed. Accordingly, the case is reversed and remanded to
the District Court with instructions to enter judgment in
accordance with the jury's verdict.
*
It is so ordered.
* Our disposition of the case makes it unnecessary for us to
consider the correctness of the trial court's disposition of the
motion for a new trial.
MR. JUSTICE HARLAN, dissenting.
Certiorari was granted in this case because it appeared that the
question was presented whether a state or federal standard
determines the sufficiency of the evidence to support a jury
verdict in cases in the district courts where jurisdiction is based
on diversity of citizenship. That question was left undecided in
Dick v. New York Life Ins. Co., 359 U.
S. 437,
359 U. S.
444-445. The Court having now concluded that the
question is not before it, I believe that the writ of certiorari
should be dismissed as improvidently granted. Nothing remains in
the case, as the Court decides it, except the question whether the
evidence was sufficient to support the verdict and questions
concerning rulings of the trial judge. As to none of these
questions can the Court do more than second-guess, one step further
removed from the actual events, the District Court and the Court of
Appeals. Accordingly, the case, as it revealed itself at argument,
was not appropriate for review by this Court.
See my
opinion in
Ferguson
v.
Page 377 U. S. 157
Moore-McCormack Lines, Inc., 352 U.
S. 521,
352 U. S. 559,
and the dissenting opinion of Mr. Justice Frankfurter in the same
case,
id. at
352 U. S. 524.
The views there expressed apply with particular force in a
diversity case, where the cause of action is founded on state,
rather than federal, law.
See the opinion of Mr. Justice
Frankfurter, dissenting in
Gibson v. Phillips Petroleum
Co., 352 U. S. 874.
On the merits, I think it is not appropriately part of the
business of this Court to substitute its judgment for that of the
Court of Appeals either on the issue of sufficiency of the evidence
or on the gravity of the trial errors which led the Court of
Appeals to conclude that the respondent had been "deprived . . . of
his day in court" and had been convicted "on rumor and hearsay not
of negligent fault, but of bribery and corruption." 262 F.2d 754,
759.