p. 152MERCER v. THERIOT.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT.No. 336. Argued April 22, 1964.—Decided May 4, 1964.
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 Dis-
trict 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 con-
sider all the substantial federal questions determined in the earlier
stages of the litigation. P. 153.
2. The evidence was sufficient under any appropriate standard,
state or federal, to support the jury’s verdict and no errors affect-
ing substantial justice occurred at the trial. Pp. 154-156.
316 F. 2d 635, reversed and remanded.
H. Alva Brumfield argued the cause for petitioner.
With him on the brief was Sylvia Roberts.
Stanley E. Loeb argued the cause and filed a brief for
respondent.
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
p. 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 Ap-
peals 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 pro-
bative 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 addi-
tional 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 inadmis-
sible 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. Peti-
tioner then sought, and we granted, a writ of certiorari.
375 U. S. 920.
We now “consider all of the substantial federal ques-
tions determined in the earlier stages of the litiga-
tion . . . ,”
Reece v. Georgia, 350 U. S. 85, 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
p. 154Shoe Co. v. Wolf Bros. & Co.,
240 U. S. 251, 257. Cf. Urie
v. Thompson,
337 U. S. 163, 171-173;
Messenger v.
Anderson, 225 U. S. 436, 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 Plain- I
tiff has been proved is for the Jury to determine.”
There was no objection to this re-instruction. We con-
clude 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 I
Appeals also held that the trial judge committed a “griev-
ous” error by permitting the introduction of certain hear- |
say evidence. Id., at 757. Counsel for the respondent I
did not object to this evidence but in fact elicited the I
same evidence in his examination of the witness. On this I
record, the admission of the evidence cannot be deemed I
a deprivation of “substantial justice.” Rule 61, Fed. I
Rules Civ. Proc. Finally, the Court of Appeals held that I
the inflammatory nature of the opening statement of I
petitioner’s counsel required a new trial. Counsel told I
the jury that he would establish that respondent “was a I
hit-and-run driver,” with “a complete disregard for . . . I
life.” Id., at 758. In the context of this case, however, I
p. 155those remarks do not seem significantly outside the
bounds of permissible advocacy. If respondent know-
ingly struck the deceased, then he was a hit-and-run
driver with little regard for human life, for it was undis-
puted 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 scru-
pulous 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 black top 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 vio-
lent 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 be-
tween 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 fol-
lowing 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 de-
cedent 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
p. 156Harl an , J., dissenting. 377U.S.
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 conclud-
ing 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, 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.
Mr . Justice Harlan , dissenting.
Certiorari was granted in this case because it appeared
that the question was presented whether a state or fed-
eral 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, 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 improvi-
dently 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 con-
cerning 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.
*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.
p. 157Moore-McCormack Lines, Inc.,
352 U. S. 521, 559, and
the dissenting opinion of Mr. Justice Frankfurter in the
same case,
id., at 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.