252 F2d 779 Gottlieb v. Rubenstein M

252 F.2d 779

Edith GOTTLIEB, Guardian of Stanley Gottlieb, a Minor, Petitioner,
v.
Ben RUBENSTEIN and Ralph M. Freeman, as District Judge, Respondents.

No. 13497.

United States Court of Appeals Sixth Circuit.

Feb. 13, 1958.

Goodman, Crockett, Eden & Robb, Detroit, Mich., for petitioner.

No counsel for respondent.

Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.

PER CURIAM.

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1

In an action filed by the petitioner against the defendant-respondent Ben Rubenstein in the District Court for damages by reason of serious injuries to her minor son resulting from an automobile accident, the jury returned a verdict in her favor in the amount of $12,500. The defendant moved for a new trial on the ground that the verdict was excessive. The District Judge entered an order granting a new trial unless the petitioner should remit $2,500 of the judgment.

2

Petitioner seeks in this Court a Writ of Mandamus directing the District Judge to set aside the order referred to on the ground that he abused his discretion in failing to follow the settled law of this jurisdiction on the question of damages, Werthan Bag Corp. v. Agnew, 6 Cir., 202 F.2d 119, that he improperly invaded the function of the jury under the Seventh Amendment to the U.S. Constitution, and that the petitioner, a widow of limited means, is without an adequate remedy by appeal.

3

While this Court has authority in a mandamus proceeding to require a District Judge to make a ruling in a cause pending before him, we will not undertake by mandamus to direct him what ruling to make, particularly where the ruling is one which addresses itself to the discretion of the District Judge. Ex parte Park & Tilford, 245 U.S. 82, 85, 38 S.Ct. 15, 62 L.Ed. 164; Jewell v. Davies, 6 Cir., 192 F.2d 670, 673.

4

The Court is of the opinion that the Writ of Mandamus is not to be used as a substitute for an appeal and that the circumstances in this case are not so exceptional as to justify a departure from that rule. Massey-Harris-Ferguson, Ltd. v. Boyd, 6 Cir., 242 F.2d 800, certiorari denied 355 U.S. 806, 78 S.Ct. 48, 2 L.Ed.2d 50; Walker v. Brooks, 6 Cir., 251 F.2d 555. See: United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 19, 46 S.Ct. 1, 70 L.Ed. 138.

5

It is Ordered that the application for the Writ of Mandamus be and is denied.