Bradley Min. Co. v. Boice

198 F.2d 790, 1952 U.S. App. LEXIS 3247

Opinions

PER CURIAM.

In this case we affirmed a judgment against the appellant, one member of the court dissenting. 194 F.2d 80. Appellant petitioned for a rehearing in banc, and rehearing was denied. Application for certi-orari followed and was denied. 343 U.S. 941, 72 S.Ct. 1033. Upon the coming down of the mandate appellant moved for leave to file a motion to vacate the denial of its petition for rehearing in banc and for the reinstatement of its petition. That motion is the matter before us for disposal.

The case was not in any aspect of such character as to suggest the advisability of its being heard or reheard in banc. It involved purely factual issues. Depending upon how the jury might evaluate the evidence, or how appraise the credibility of the witnesses, it was concededly a case in which both actual and exemplary damages were awardable. The charges made against the defendant, and presumably accepted by the jury as true on the evidence before it, were for conduct of a nature calculated to blast at the threshold the efforts of a young doctor to establish himself in his profession. The problem presented bore scant resemblance to Southern Pacific Co. v. Guthrie, 9 Cir., 186 F.2d 926, and speculation as to the probable attitude here of the judges who participated in Guthrie has no perceivable basis.

The judge who presided at the trial, convinced that the jury was not motivated by passion or prejudice and that its verdict, while large, was not excessive, denied a motion for a new trial.¹ Being ourselves disinclined to usurp the functions of the jury or to invade the province of the district judge, and being, moreover, of opinion that the judge was right in refusing to disturb the verdict, we affirmed. Appellant has had its appeal and its opportunity for certiorari or other relief in the Supreme Court. It is not entitled to pursue the process a second time.

The motion for leave to file is denied.

1 . 92 F.Supp. 750.