Bosley v. Southern Bell Telephone & Telegraph Co.

W.D. Louisiana

Bosley v. Southern Bell Telephone & Telegraph Co.

1 F.R.D. 771, 1941 U.S. Dist. LEXIS 2061

CourtDistrict Court, W.D. Louisiana

DecidedMay 16, 1941

DocketCivil Actions Nos. 404 and 405

StatusPublished

Cited by3 cases

This text of 1 F.R.D. 771 (Bosley v. Southern Bell Telephone & Telegraph Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bosley v. Southern Bell Telephone & Telegraph Co., 1 F.R.D. 771, 1941 U.S. Dist. LEXIS 2061 (W.D. La. 1941).

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Opinion

DAWKINS, District Judge.

The question presented in these cases is as to whether or not the plaintiffs’ ap[772]*772plication for trial by jury shall be allowed. The suit was filed on December 31, 1940, and exactly at the end of the twenty days for appearance, defendant filed its answer. The affidavits dispute the question of whether or not the answer was delivered in person by counsel for defendant or sent through the mail. In either event, however, it was beyond the ten days prescribed by rule 38(b) of the New Rules of Federal Procedure, 28 U.S. C.A. following section 723c.

The action is one for damages for personal injury, which ordinarily is peculiarly a jury case. It is said by defendant that there are complicated questions of law on the question of agency, but there seems no reason why the court could not properly instruct the jury on these matters. While the plaintiffs are not entitled as a matter of right under the Rules to trial by jury, I believe the court has a discretion to allow the jury anyway. The affidavits by the plaintiffs’ counsel are to the effect that the failure to ask for ■a jury was an oversight, and in any event, the delay was not more than five days.

My conclusion is that both of these cases should be tried by jury and it is accordingly so ordered.

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DAWKINS, District Judge.

The question presented in these cases is as to whether or not the plaintiffs’ ap[772]*772plication for trial by jury shall be allowed. The suit was filed on December 31, 1940, and exactly at the end of the twenty days for appearance, defendant filed its answer. The affidavits dispute the question of whether or not the answer was delivered in person by counsel for defendant or sent through the mail. In either event, however, it was beyond the ten days prescribed by rule 38(b) of the New Rules of Federal Procedure, 28 U.S. C.A. following section 723c.

The action is one for damages for personal injury, which ordinarily is peculiarly a jury case. It is said by defendant that there are complicated questions of law on the question of agency, but there seems no reason why the court could not properly instruct the jury on these matters. While the plaintiffs are not entitled as a matter of right under the Rules to trial by jury, I believe the court has a discretion to allow the jury anyway. The affidavits by the plaintiffs’ counsel are to the effect that the failure to ask for ■a jury was an oversight, and in any event, the delay was not more than five days.

My conclusion is that both of these cases should be tried by jury and it is accordingly so ordered.

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Bluebook (online)

1 F.R.D. 771, 1941 U.S. Dist. LEXIS 2061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bosley-v-southern-bell-telephone-telegraph-co-lawd-1941.

Opinion

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