Edna Alexander Gleason, As Natural Tutrix of the Minor,kevin L. Gleason, Plaintiff-appellant-cross Appellee, v. Thomas L. Hall, Defendant-third-partydefendant-appellee-cross Appellant,southern Pacific Transportation Company,defendant-third-party Plaintiff-appellee-cross Appellant,travelers Indemnity Company, Third-party Defendant, 557 F.2d 1052 (5th Cir. 1977)

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U.S. Court of Appeals for the Fifth Circuit - 557 F.2d 1052 (5th Cir. 1977)

Aug. 5, 1977

Billy R. Pesnell, Shreveport, La., for plaintiff-appellant-cross appellee.

Henry A. Politz, Fred H. Sutherland, Shreveport, La., for Representative T. L. Hall.

Sam A. Freyer, Shreveport, La., for Representative Southern Pacific Trans. Co.

Jerold L. Perlman, Shreveport, La., for Representative Travelers.

Appeals from the United States District Court for the Western District of Louisiana.

Before WISDOM and GEE, Circuit Judges, and BOOTLE,*  District Judge.


In an opinion in this case issued July 11, 1977, 555 F.2d 514-521, this Court allowed a plaintiff who had accepted "under protest" a remittitur to challenge on appeal the propriety of the remittitur. The defendants cross-appealed on the ground that the district court erred in not requiring a larger remittitur by the plaintiff. We affirmed the district court, relying on the Fifth Circuit rule that:

The standard for review . . . is strict; and the trial court will be reversed only if the party opposed to the remittitur shows an abuse of discretion on the part of the judge.

Bonura Sea Land Service, Inc., 5 Cir. 1974, 505 F.2d 665, 669. We cited also Gorsalitz v. Olin Mathiesen Chemical Corporation, 5 Cir. 1972, 456 F.2d 180, 181, cert. denied, 407 U.S. 921, 92 S. Ct. 2463, 32 L. Ed. 2d 807, reh. denied, 409 U.S. 899, 93 S. Ct. 108, 34 L. Ed. 2d 159.

The Supreme Court has now held in Donovan v. Penn Shipping Co., 1977, 429 U.S. 648, 97 S. Ct. 835, 51 L. Ed. 2d 112, 114:

In order to clarify whatever uncertainty might exist, we now reaffirm the longstanding rule that a plaintiff in federal court, whether prosecuting a state or federal cause of action, may not appeal from a remittitur order he has accepted (even though the order stated that he accepted "under protest").

Accordingly, our earlier opinion decided July 11, 1977, is withdrawn. The appeal and cross-appeal are dismissed.


Senior District Judge of the Middle District of Georgia sitting by designation