252 F2d 115 Travelers Insurance Company v. Stanley

252 F.2d 115

TRAVELERS INSURANCE COMPANY, Appellant,
v.
Mrs. Clara Louise Sanford STANLEY et al., Appellees.

No. 16742.

United States Court of Appeals Fifth Circuit.

Feb. 11, 1958.

Ernest A. Carrere, Jr., May & Carrere, New Orleans, La., for appellant.

Joseph Rosenberg, New Orleans, La., for appellees.

Before BORAH, TUTTLE, and CAMERON, Circuit Judges.

PER CURIAM.

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1

This appeal is from a judgment for the plaintiffs in an action brought against Travelers Insurance Company under the Louisiana Direct Action Statute1 for damages for the wrongful death of their minor son who died by electrocution at the swimming pool operated by defendant's insured, Audubon Park Natatorium, Inc. The case was tried to a jury which returned a verdict in favor of Mrs. Stanley for $30,000 plus burial expenses of $917.94, and a verdict for Mr. Stanley in the amount of $500.

2

On this appeal, error is assigned on the failure of the court to direct a verdict for the defendant on motion made at the close of the plaintiffs' testimony. However, defendant did not elect to stand on the motion, but introduced further evidence, and it is elemental that, when a defendant does not elect to stand upon a motion to direct at the close of plaintiff's case and introduces testimony in defense, the motion is considered waived. Furthermore, in this case it is plain that plaintiffs had made a prima facie case sufficient to go to the jury.

3

Appellant's second point is that the court erred in not granting a remittitur or in the alternative a new trial for the reason that the verdict in favor of Mrs. Stanley for $30,000 plus burial expenses was excessive as a matter of law. After a careful consideration of all the facts in this case, we are of the clear opinion that the verdict is not gross, monstrous, or inordinate, and therefore contrary to right reason, and that if it is excessive it is not so as a matter of law, but only as a matter of fact. This being so, this Court is without power to inquire into the amount of its excessiveness.

4

Affirmed.

1

Louisiana Statutes Annotated-- Revised Statutes of 1950, 22:655