Charles Jackson v. Wilson Trucking Corp., a Corporation, and Roy S. Rexrode

243 F.2d 212, 100 U.S. App. D.C. 106, 1957 U.S. App. LEXIS 2915

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 21, 1957
• Docket: 13359_1
• Status: Published

Opinions

FAIIY, Circuit Judge.

In an action for personal injuries suffered as a pedestrian when struck by an automobile, plaintiff in the District Court, appellant here, obtained a monetary jury verdict against defendants, appellees. Upon this verdict judgment was entered for plaintiff. Defendants filed a timely motion for judgment notwithstanding the verdict, pursuant to Rule 50(b), Fed.Rules Civ. Proc., 28 U.S.C.A. This motion was not accompanied by a motion or prayer for a new trial as permitted by the Rule.¹ The District Judge some weeks later denied defendants’ motion for judgment but set aside the verdict and judgment in favor of plaintiff and ordered a new trial. In explanation the Judge stated in open court:

“ * * * I do not think the state of the evidence is such that I can properly grant the motion [of defendants] for judgment notwithstanding the verdict. But I do feel that the greater weight of the evidence is contrary to the verdict of the jury, and that in all fairness and justice, a new trial shall [sic] be granted. Inasmuch as the motion that was filed was timely, I feel that I have a discretion to grant the lesser remedy instead of the greater one.”

Plaintiff moved to set aside the order granting a new trial, on the ground essentially that the Court was without jurisdiction to enter it since no timely motion therefor had been filed and the Court had not on its own initiative ordered the new trial within 10 days from entry of the judgment. Rule 59(b) and Rule 59(d), Ped.Rules Civ.Proc., were relied upon.² The appeal is from the Court’s order denying this motion and also from the earlier order awarding defendants a new trial.³

When a trial court concludes that a proper basis exists for granting a timely, well-grounded motion for judgment n. o. v., it has a discretion to grant the lesser relief and to order a new trial instead if justice would thereby better be served.⁴ This is so even though no motion for a new trial has been filed, and even though 10 days have elapsed since the entry of judgment. This discretion to grant the lesser relief, however, comes into being only when the record is such that the entry of judgment n. o. v. would be warranted. The court may then give the party against whom judgment n. o. v. could be entered another opportunity to supply those defects in the record which would warrant the harsher remedy of an adverse final judgment.

“ * # the court does not have to grant the motion for judgment notwithstanding verdict, even though he thinks the original motion for a directed verdict should have been granted. This rule particularly provides that he may grant a new trial where justice would be served by it; where, for instance, it is obvious that the defect in the proof of one side or the other is a thing that may be remedied at a new trial without perjury.” Statement of Mr. William D. Mitchell, Chairman of the Advisory Committee which drafted the Rules, Proceedings of the Symposium at New York City on the Federal Rules, p. 283-4 (1938).

This clearly refers to a situation where the motion for judgment n. o. v. could be granted.⁵ To the same effect see note in Report of Proposed Amendments to the Rules, 1946 U.S.Code Cong.Serv. pp. 2315, 2352, 79th Cong., 2d Sess.

An entirely different situation pertains when a verdict could not have been directed; that is, when the motion for judgment n. o. v., though timely, cannot be granted. Rule 59 (b) and Rule 59 (d), note 2 supra, then govern. Sub-paragraph (b) requires a motion for a new trial to be served not later than 10 days after the entry of judgment. Sub-paragraph (d) permits the court of its own initiative to order a new trial only within 10 days after the entry of judgment. In the case at bar, as we have seen, the Court decided that the state of the evidence did not allow him to grant the motion for judgment n. o. v. filed under Rule 50(b). No motion for a new trial had been filed by defendants and 10 days since the entry of judgment had long since elapsed. The factors essential to the exercise of power to order a new trial accordingly did not exist.

This construction of the Rules we think is sustained not only by the terms and intendment of Rule 50(b) when construed in the light of Rule 59(b) and Rule 59(d), but also by the decision of this Court in Freid v. McGrath, 76 U.S. App.D.C. 388, 133 F.2d 350.⁶ Cf. Bailey v. Slentz, 10 Cir., 189 F.2d 406, and Kanatser v. Chrysler Corp., 10 Cir., 199 F.2d 610, certiorari denied, 544 U.S. 921, 73 S.Ct. 388, 97 L.Ed. 710.

The precise question has not been decided by the Supreme Court, but the Supreme Court has considered Rule 50(b) in several cases. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849; Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177; Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971; Johnson v. New York, New Haven & Hartford R. Co., 344 U.S. 48, 73 S.Ct. 125, 126, 97 L.Ed. 77. In the Johnson case, the Court said:

“On several recent occasions we have considered Rule 50(b). We have said that in the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of a verdict the rule forbids the trial judge or an appellate court to enter such a judgment.”

These cases do not solve our problem, but none of them militates against the solution we reach, and at least they demonstrate that unless a motion for the greater remedy, for judgment n. o. v., is timely filed it may not be granted even though a motion for a new trial has been timely filed. While it does not necessarily follow from the Supreme Court decisions that the lesser remedy may not be granted in the converse situation, we think this does follow from the necessity of giving efficacy to Rule 59(b) and Rule 59(d). They would be largely nullified were it to be held that an ill-founded, though timely, motion for judgment n. o. v. under Rule 50(b) must be deemed either to include a motion for a new trial though none be actually filed, or to hold open for more than 10 days the authority of the court under Rule 59(d) to grant a new trial on its own initiative. When the trial judge in the present case found himself unable to grant the motion for judgment there was no request for a new trial before him and the time within which he could order a new trial on his own initiative had long since expired. Accordingly he was without authority to order a new trial.⁷

In deference to the views of Judge Burger in dissent we have reconsidered our position above set forth and are constrained to adhere to it. Judge Burger in effect says that Rule 50(b) in all c^ses means that a motion for judgment n. o. v. shall be deemed to include a motion for a new trial and that the judge may grant one or the other. If that were correct, the rule would not have needed the sentence: “A motion for a new trial may be joined with this, motion, or a new trial may be prayed for in the alternative.” He sees formalism in our application of the Rules, a failure to give effect to their aim and spirit to “secure the just, speedy, and inexpensive determination of every action.” Rule 1, Fed.Rules Civ.Proc. Moreover, he suggests that we do not recognize the full responsibility of the trial court in the judicial dispensation of justice. Rather, we think our position reflects the importance which should be ascribed to a valid verdict of a jury. This was a jury case. The role a jury plays in the dispensation of justice in a trial court is not only not insignificant, but in such a case as this is usually controlling both in the trial court and on appeal. The trial judge here concluded that the verdict for the plaintiff was supported by the evidence, and he could neither direct a verdict nor order judgment for the defendants. Moreover, there is no suggestion of any trial error which impaired the verdict. In this situation the spirit of the Rules, as well as their language, says that the judgment entered on the verdict should end the matter, except under certain specified conditions. We have spelled out those conditions, as contained in Rules 50(b), 59(b) and 59(d). None of the provisions of these Rules relating explicitly to a new trial was either complied with or invoked. The explicit provisions of Rules 59(b) and 59(d) prevent us from implying a power inconsistent with them. Implication sometimes is justified in the absence of explicitness, but not when contrary thereto. In any event an implied power to grant a new trial is not justified in this case, where the full force of the Rules combines in both spirit and form to the end that the valid verdict of the jury upon which judgment has been entered should stand. Where, on the other hand, a verdict is not valid; that is, where it is vulnerable to a timely motion for judgment n. o. v., then the trial court, in the exercise of a just discretion, may permit the party in favor of whom the jury has awarded its verdict to try his case again rather than to suffer an immediate and final adverse judgment at the hands of the trial judge. This discretionary power conflicts with no Rule. It accords with the purpose of the Rules to obtain a just determination. But this is quite different from authority to set aside a valid jury verdict in the discretion of the trial judge when the discretion is not exercised within the time and on the conditions specified in the Rules.

Reversed and remanded with directions to reinstate the judgment entered on the verdict of the jury.

1 . The text of Rule 50(b) is as follows :

“(b) Reservation of Decision on Motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either ®rder a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.”

2 . These provisions of Rule 59 read as follows :

“(b) Time for Motion. A motion for a new trial shall be served not later than 10 days after the entry of the judgment. * * *"

“(d) On Initiative of Oourt. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.”

3 . An order granting a new trial is not ordinarily reviewable. But where, as in the case at bar, such an order exceeds the power of the court it may be reviewed notwithstanding the absence of a final judgment. Phillips v. Negley, 117 U.S. 665, 671, 6 S.Ct. 901, 29 L.Ed. 1013; Freid v. McGrath, 76 U.S.App.D.C. 388, 133 F.2d 350.

4 . “The motion for judgment cannot be granted unless, as matter of law, the opponent of the movant failed to make a case and, therefore, a verdict in movant’s favor should have been directed.” Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 147. “Each motion * * * has its own office.” Id., 311 U.S. at page 251, 61 S.Ct. at page 194. In Simmonds v. Capital Transit Co., 79 U.S.App.D.C. 371, 147 F. 2d 570, 571, we held the trial court in error in granting the motion for judgment on the record as presented, and added, “Inasmuch as there was no motion, in the alternative, for a new trial, it follows that the judgment below must be reversed.” In the instant case the trial judge said: “If I have the jurisdiction to do it, I would grant a new trial. I wouldn’t grant the motion for judgment notwithstanding the verdict.” The greater remedy sought in the Simmonds case did not include the lesser, for there, as here, there was no basis upon which judgment n. o. v. might rest. It should be added, however, that in Simmonds, unlike the situation now before us, the trial court had not itself ordered a new triaL

5 . At the argument of defendants’ motion for judgment n. o. v., their counsel said: “Ordinarily in these eases I ask for a new trial in the alternative. I haven’t asked it here, because I don’t think it would be adequate relief.” The trial judge found himself unable to grant the motion for judgment because, as in Pessagno v. Euclid Inv. Co., 72 App.D.C. 141, 144, 112 F.2d 577, 580, the only question was “whether reasonable men might differ on the question of negligence. * * * A motion for a new trial, however, may raise a myriad of other questions as to which appellant has the right to a ruling.” There, as in the Simmonds case, note 4 supra, this court said the motion for judgment n. o. v. could not be granted. Since in Pessagno a motion for a new trial had been filed, however, we reversed with instructions to reinstate the verdict and pass upon the alternative motion.

6 . Nor is the dissenting opinion in Freid v. McGrath inconsistent with this position.

7 . Professor Moore, in Ms discussions of the general subject, has said:

“When a motion for judgment under Rule 50(b) is properly and timely made the trial court may, if a verdict has been returned, allow the judgment to stand or reopen the judgment and in its discretion either grant a new trial or direct the entry of judgment in accordance with the requested directed verdict.” 5 Moore’s Federal Practice 2332 (2d ed. 1952). ■

This seems to support the view we take because a discretion to grant either a new trial or to direct the entry of judgment can arise only if the latter could be done. See, however, 6 Moore’s Federal Practice 3851, and footnote 11 at that page, where the author seems to state a different view. At p. 3851 he says:

“In line with the position we have taken, the trial court may respond to a motion for judgment n. o. v. by granting a new trial instead, even after 10 days have elapsed from the entry of the judgment.”

At this point, in footnote 10, however, Moore refers to Gillis v. Reicks, D.C.D.C., 7 F.R.D. 205, where, though only a motion for judgment n. o. v. had been filed, Judge Pine granted a new trial. But the judge indicated in Ms opinion that he did so in the exercise of a discretion available where a judgment n. o. v. could be granted. Moore also refers to Gone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 755, 91 L.Ed. 849, described as holding that where the trial court may validly grant a motion for judgment n. o. v. it may instead order a new trial in its discretion. The Court said in Cone:

“ * * * In short, the rule does not compel a trial judge to enter judgment notwithstanding the verdict instead of ordering a new trial; it permits him to exercise a discretion to choose between the two alternatives.”

These cases seem to support our view rather than the statement for which they are cited by Moore.