Fries-Breslin Co. v. Bergen

• Decision Date: 04 March 1909
• Docket Number: 314.
• Parties: FRIES-BRESLIN CO. v. BERGEN et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

168 F. 360

FRIES-BRESLIN CO. v. BERGEN et al.

No. 314.

United States Circuit Court, E.D. Pennsylvania.

March 4, 1909

Graham C. Woodward and Roger Foster, for plaintiff.

Frank R. Shattuck and Alex. Simpson, Jr., for defendants.

HOLLAND District Judge.

The Fries-Breslin Company brings this suit against the defendants to recover the sum of $110,723.92, together with interest from the 4th day of October, 1904, because of the alleged negligent performance of their duties as the plaintiff's insurance agents or brokers in placing insurance upon plaintiff's property.

At the close of the trial, the defendants requested the court to charge the jury that 'the verdict must be for the defendants.'

This was refused by the court, and in due time the defendants filed the following motions:

'And now, January 4, 1909, defendants, upon the trial of the above case, having presented a point requesting binding instructions in their favor, which point was refused by the trial judge, now move the court to have all the evidence taken upon the trial duly certified and filed so as to become a part of the record, and for judgment non obstante veredicto upon the whole record.'

This motion accords with the requirements of the Pennsylvania practice act of April 22, 1905 (P.L. 286), which provides:

'That whenever, upon the trial of any issue, a point requesting binding instructions has been reserved or declined, the party presenting the point may, within the time prescribed for moving for a new trial, or within such other or further time as the court shall allow, move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment non obstante veredicto upon the whole record; whereupon it shall be the duty of the court, if it does not grant a new trial, to so certify the evidence, and to enter such judgment as should have been entered upon that evidence, at the same time granting to the party against whom the decision is rendered an exception to the action of the court in that regard. From the judgment thus entered either party may appeal to the supreme or superior court, as in other cases, which shall review the action of the court below, and enter such judgment as shall be warranted by the evidence taken in that court.'

This act has been before the appellate courts of the state of Pennsylvania and carefully examined by Chief Justice Mitchell, of the Supreme Court, and Judge Orlady, of the superior court. The former, on May 24, 1906, in the case of Dalmas v. Kemble, 215 Pa. 410, 64 A. 559, in construing the act, said:

'The act being so recent, it is important that it should be examined closely, and its proper construction settled. * * * This statute makes no radical innovation on the settled line of distinction between the powers of the court and the jury. It shows no intention to infringe, even if it could constitutionally do so, the province of the jury to pass upon the credibility of witnesses and the weight of the oral testimony. The court has long had authority to direct a verdict for defendant when it was of opinion that the plaintiff, even if all his evidence be believed, has failed to make out his case. But this had to be done offhand at the trial, and a mistake of the judge either way resulted in delay and expense. If he directed for defendant, but on more deliberate examination or consideration came to the view that there was some evidence for the jury to pass upon, a new trial was the only remedy; while, on the other hand, if he refused a binding direction, but later found that it should have been given, the same result followed, for after a question has been submitted to a jury and the fact found by them the power of the court to enter a contrary judgment on the ground that the evidence was insufficient is gone. * * * The authority to reserve questions of law for the consideration of the court in banc was first conferred by the act of March 1, 1825 (P.L. 41), upon the judges of the district court of Philadelphia, continued in the same court by the act of March 28, 1835 (P.L. 88), and extended to the courts of the commonwealth generally by the act of April 22, 1863 (P.L. 554), together with the power, also first conferred on the district court of Philadelphia by the act of March 11, 1836 (P.L. 76), to enter a compulsory nonsuit if the plaintiff's evidence is not sufficient to maintain his action.

'The act of 1905 is another step in the same direction. It broadens the power of the judge in this respect, that whereas heretofore the verdict was required to be for the plaintiff and the reservation to be of leave to enter judgment for the defendant non obstante, now what is reserved is a request for binding instructions to the jury, and may be for either plaintiff or defendant.

But though thus enlarged so as to include both parties, the power of the judge is the same as it was before. He is 'to enter such judgment as should have been entered upon that evidence,' or, in other words, to treat the motion for judgment as if it was a motion for binding directions at the trial, and to enter judgment as if such direction had been given and a verdict rendered in accordance. What the judge may do is still the same in substance, but the time when he may do it is enlarged so as to allow deliberate review and consideration of the facts and the law upon the whole evidence. If upon such consideration it shall appear that a binding direction for either party would have been proper at the close of the trial, the court may enter judgment later with the same effect. But, on the other hand, if it should appear that there was conflict of evidence on a material fact, or any reason why there could not have been a binding direction, then there can be no judgment against the verdict now.'

And Judge Orlady, in Ackley v. Bradford Township, 32 Pa.Super.Ct. 487, following the view of the Chief Justice as to the effect of the enactment, lays down the further rule that in passing upon the question, at the close of the trial, whether there was a conflict of evidence on a material fact, 'the plaintiff's right to recover depended upon not only his own testimony, but the inferences to be drawn from the facts and circumstances adduced by other witnesses'; that is, all the witnesses, whether called by the plaintiff or defendant.

From Chief Justice Mitchell's clear and careful definition of the scope of the act, we see that while heretofore, at the trial of a case in the Pennsylvania state courts on reserved questions of law for the consideration of the court in banc, it was required that the verdict should be for the plaintiff, and the reservation to be of leave to enter judgment for the defendant non obstante veredicto, that now this power of the judge is enlarged by the act of 1905 by reserving a request for binding instructions to the jury, and may be for either plaintiff or defendant, but his action is of the same kind; though it may be exercised for either party, the power is the same.

A motion to enter a compulsory nonsuit under the act of March 11, 1875, P.L. 6 (13th Ed.) Purdon, 3320, supplying the provisions of the act of March 11, 1836 (P.L. 76), was required to be made by defendant and acted upon by the presiding judge at the close of the plaintiff's evidence, and was in effect a demurrer to the sufficiency of the evidence to maintain the action.

On this motion, it was necessary for the judge to act at once, and it was extremely difficult to accurately recall all the evidence and the inferences arising therefrom in favor of the plaintiff's case, especially when it was of a circumstantial nature and voluminous. The objection to this practice is its failure to afford the judge time for proper deliberation and examination as to the plaintiff's evidence in support of the matters at issue. Now, if there be any doubt about defendant's right to a nonsuit under the old practice, the court can overrule the motion, if one be made, and upon a motion for binding instructions under the act of 1905, at the close of the trial, what the judge may do is still the same in substance, but the time when he may do it is enlarged so as to allow deliberate review and consideration of the facts and the law upon the whole evidence, and he may enter the judgment for either plaintiff or defendant.

It is urged by plaintiff that the act is not adaptable to the federal court practice, and cannot be followed. The highest tribunals in the state have held the act is no attempt to infringe upon the province of a jury to pass upon the credibility of the witnesses and the weight of the oral testimony, but simply broadens the power of the judge in the matter of practice in the state in entering judgment non obstante on reserved questions of law, and the only difference between a motion to order a nonsuit of the plaintiff and a motion to direct a verdict for the defendant is one 'rather of matter of form than of substance.'

Oscanyan v. Arms Co., 103 U.S. 264, 26 L.Ed. 539; Central Transp. Co. v. Pullman Co., 139 U.S. 39, 11 Sup.Ct. 478, 35 L.Ed. 55.

In the latter case, to wit, Central Transp. Co. v. Pullman Co., the court held that the Pennsylvania act of March 11, 1875 authorizing 'the presiding judge at the trial to order a judgment of nonsuit to be entered if in his opinion the plaintiff shall have given no such evidence as in law is sufficient to maintain the action,' is a matter of practice required to be followed under Rev. St. Sec. 914 (U.S. Comp. St. 1901, p. 684), in the Circuit Court of the United States held within the state. Under the state act the motion for a nonsuit is made at the close of the plaintiff's evidence, and must be then refused or allowed by the presiding judge on the...