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532 F.2d 489

Docket No. 75-4232

Davis v. Safeway Stores, Inc.

Fifth Circuit Court of Appeals

Decided June 1, 1976.

Rehearing Denied July 21, 1976.

Fifth Circuit Court of Appeals · decided 1976-06-01

2 counsel of record

Key passage — most relied on by later courts

“an appellate court that finds a verdict excessive may give plaintiff the choice between a new trial and a remittitur in a specified amount.”

quoted by 2 later decisions, including Carlton v. H. C. Price Co., Pinner v. Schmidt

“the judge clearly separated the amounts he awarded for each element of damages”

quoted by 1 later decision, including Anderson v. Siemens Corp.

Relies on Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York · Gasoline Products Co. v. Champlin Refining Co. · Dallas Railway & Terminal Company v. Gossett

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1976-06-01

How this case has been cited

Cited by 49 later decisions — most recently June 2013 · most notably Nissho-Iwai Co. v. Occidental Crude Sales, Inc. (1984), Hritz v. Woma Corp. (1984)

34 federal appellate · 4 state decisions

33019761980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Summary Calendar.*

¶2*490Thomas L. Kelly, Jr., J. Redwine Patterson, Dallas, Tex., for defendant-appellant.

¶3Ronald L. Wilkinson, Dallas, Tex., for plaintiff-appellee.

¶4Before COLEMAN, GOLDBERG and GEE, Circuit Judges.

¶6PER CURIAM:

¶7Appellee, individually and as next friend of her minor son, sued appellant and others to recover damages for an eye injury sustained by him when a glass bottle exploded. The lower court granted default judgment against appellant and awarded damages. We affirm liability but reverse as to damages.

¶8I. Default Judgment

¶9Appellant’s registered agent was served with process on August 18, 1975, and the agent forwarded a copy to appellant on August 21. But though appellant, pursuant to the terms of its liability insurance policy, promptly mailed a copy to its insurance carrier, which received it on August 25, no answer was filed by September 25, when the lower court gave default judgment for appellee. Appellant challenges the lower court’s refusal to set aside that judgment under Fed.R.Civ.P. 60(b), which permits a court, in its discretion, to relieve a party from a final judgment on grounds of mistake, inadvertence, surprise, or excusable neglect. We find no abuse of discretion here.

¶10The lack of communication between defendant and its insurance company for three weeks after the latter had received a copy of the complaint suggests an absence of minimal internal procedural safeguards. This we found sufficient to uphold a lower court’s refusal to set aside a default judgment in Baez v. S. S. Kresge Co., 518 F.2d 349 (5th Cir. 1975) (per curiam) (copy of complaint sent by registered agent and received by home office in ample time but lost in the mail en route to local counsel). Appellant offers no explanation or excuse for its default. We cannot say the trial court’s discretion was abused.

¶11*491II. Damages

¶12Appellant challenges the sufficiency of evidence supporting the lower court’s award for past and future medical expenses. The court awarded appellee $1,089 for past medical expenses, based solely on copies of the medical bills and on statements in affidavits by plaintiff and her son concerning the nature of the injury and the amount charged, without any proof that the charges made were reasonable. Since the law in Texas1 and elsewhere2 requires proof that the amount charged was reasonable, the damages awarded for past medical expenses cannot stand.

¶13The lower court also awarded appel-lee $10,000 for future medical expenses, based solely on statements and affidavits by plaintiff and her son that they anticipated future medical expenses of $3,000. This evidence on future expenses obviously cannot support such an award.

¶14In addition to past and future medical expenses, the lower court awarded $100,000 as compensatory damages for the personal injuries to appellee’s son and $5,000 for the parent’s loss of her child’s services. Appellant does not challenge these awards. Thus, the only errors are in the damages awarded for medical expenses, and a new trial limited to a redetermination of those two items of damages3 will be granted unless appellee agrees to a remitti-tur4 of all damages in excess of $105,000.

¶15REVERSED and REMANDED, with instructions.

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