195 F.2d 193 (8th Cir. 1952), 14432, Meier & Pohlmann Furniture Co. v. Troeger

Docket Nº:14432.
Citation:195 F.2d 193
Case Date:April 01, 1952
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 193

195 F.2d 193 (8th Cir. 1952)




No. 14432.

United States Court of Appeals, Eighth Circuit.

April 1, 1952

Page 194

Victor B. Harris, St. Louis, Mo. (Charles H. Spoehrer and Smith, Harris & Hanke, all of St. Louis, Mo., on the brief), for appellant.

Malcolm I. Frank, St. Louis, Mo. (Robert Mass, St. Louis, Mo., on the brief), for appellee.

Before SANBORN, JOHNSEN, and COLLET, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment in favor of the plaintiff (appellee), entered upon the verdict of a jury in an action brought to recover allegedly unpaid overtime compensation under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. §§ 201-219. The defendant (appellant) asks that the judgment be reversed upon two grounds: (1) the failure of the District Court to sustain the challenge of a prospective juror for cause, and (2) the insufficiency of the evidence to support the verdict.

The question of the sufficiency of the evidence is not reviewable. The defendant made a motion for a directed verdict at the close of the plaintiff's case. The motion was overruled. The defendant then introduced its testimony, thereby waiving its motion and any objection to the court's action thereon. Hansen v. Boyd, 161 U.S. 397, 403, 16 S.Ct. 571, 40 L.Ed. 746; Perovich v. United States, 205 U.S. 86, 91, 27 S.Ct. 456, 51 L.Ed. 722; Heskett v. United States, 9 Cir., 58 F.2d 897, 902; Smith v. United States, 5 Cir., 63 F.2d 110. Upon the trial of a jury case, in order to preserve for review the question of the sufficiency of the evidence, a party who believes that he is entitled to a verdict as a matter of law must, at the close of all of the evidence, make a motion for a directed verdict in his favor and secure a ruling thereon from the court. Harnik v. Lilley, 8 Cir., 167 F.2d 159, 160-161 and cases cited; Black, Sivalls & Bryson, Inc. v. Shondell, 8 Cir., 174 F.2d 587, 591.

There is little substance and no merit in the contention that the District Court committed prejudicial error in failing to sustain a challenge to a prospective juror for cause. Briefly and generally stated, the following is what occurred: One juror, out of a panel of eighteen, stated on his voir dire examination by the court that he had a casual acquaintance with the attorney for the plaintiff; that the attorney was a...

To continue reading