253 F2d 724 Palermo v. Luckenbach Steamship Company

253 F.2d 724

Pasquale PALERMO, Plaintiff-Appellee,

No. 369.

Docket 24245.

United States Court of Appeals Second Circuit.

Submitted January 20, 1958.

Decided March 28, 1958.

Burlingham, Hupper & Kennedy, Eugene Underwood, New York City, for defendant-appellant.

Philip F. DiCostanzo, Brooklyn, N. Y., for plaintiff-appellee.

Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.


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Luckenbach moves for leave to file additional briefs, and for oral argument with respect to its appeal from the denial by the trial judge of its motion to set aside the jury verdict because of an alleged excessive award of damages. We found it unnecessary to discuss this issue when the case was originally before us in view of our disposition of the question of liability. See 246 F.2d 557. Now that the U. S. Supreme Court, 78 S.Ct. 1, 355 U.S. 20, 2 L.Ed.2d 3, has held defendant liable, defendant renews its request that we consider the issues it raises with respect to the amount of the award.


We deny defendant's motion to file additional briefs and to reargue orally, and we consider the points it raises upon the documents already before us.


At the trial, after verdict was returned defendant moved to set aside the verdict on the ground that it was excessive. This the distinguished trial judge declined to do; and defendant urges upon us that he did not do so in the exercise of his discretion, but because he misconceived his power. In his written opinion denying the motion, the trial judge stated that the amount of the verdict gave him some concern and the jury may have been overgenerous; but he also stated that it had been established by medical testimony that the plaintiff was very seriously injured and that there was substantial evidence to support the verdict. It seems to us that the district judge did exercise his discretion in denying the motion.


Therefore, the petition to file additional briefs and to present additional argument is denied; and the judgment below heretofore entered by the district court upon the verdict of the jury is affirmed.