Sears v. Pauly, 5366

• Citation: 261 F.2d 304
• Decision Date: 26 November 1958
• Docket Number: No. 5366,5367.,5366
• Parties: Eleonora R. SEARS, Defendant, Appellant, v. Hartmann H. PAULY, Plaintiff, Appellee. Hartmann H. PAULY, Plaintiff, Appellant, v. Eleonora R. SEARS, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

261 F.2d 304 (1958)

Eleonora R. SEARS, Defendant, Appellant, v. Hartmann H. PAULY, Plaintiff, Appellee.

Hartmann H. PAULY, Plaintiff, Appellant, v. Eleonora R. SEARS, Defendant, Appellee.

Nos. 5366, 5367.

United States Court of Appeals First Circuit.

November 26, 1958.

COPYRIGHT MATERIAL OMITTED

Joseph B. Abrams, Boston, Mass., with whom Samuel Abrams, Joseph G. Crane and Ruth I. Abrams, Boston, Mass., were on brief, for Eleonora R. Sears.

James D. St. Clair, Boston, Mass., with whom Blair L. Perry and Hale & Dorr, Boston, Mass., were on brief, for Hartmann H. Pauly.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

There are two appeals arising out of this litigation that are before us for decision. Appeal No. 5366 is by the defendant and is from that part of the judgment of the United States District Court for the District of Massachusetts, following a jury verdict for the plaintiff, awarding the plaintiff $85,000 on his second cause of action. Appeal No. 5367 is by the plaintiff and is from an order of the district court denying the plaintiff's motion to amend the judgment by adding thereto interest from the date the action was commenced to the date of entry of judgment.

This case arises out of a controversy as to the existence and terms of an oral contract of employment between the defendant, Eleonora R. Sears, the owner of a number of costly horses, and the plaintiff, Hartmann H. Pauly, an Hungarian born trainer and former United States Olympic rider. The jury in response to written interrogatories found that the plaintiff and defendant entered into a contract of employment of the plaintiff for his life and that the contract was made on August 19, 1954 at Pride's Crossing, Massachusetts. The jury also found that this contract had been broken by Miss Sears and awarded Pauly $85,000 as damages. The jury further found that the gift of a horse, Mizban, from the Aga Khan to Pauly was associated with negotiations between the Aga Khan and Miss Sears for the purchase by her of certain of his race horses, which negotiations were conducted on her behalf by Pauly prior to the breach of the employment contract. On the basis of this finding, the district judge ordered judgment for the defendant on the plaintiff's third cause of action¹ which had sought damages for the retention of Mizban by Miss Sears. Pauly had alleged that Mizban had been transferred to Miss Sears only because of the existence of the lifetime employment contract.

A question has been raised as to the propriety of the defendant's appeal. In her notice of appeal it is expressly stated that the appeal is from that part of the final judgment entered on the plaintiff's second cause of action. The defendant made no motion for a directed verdict under F.R.Civ.P. 50, 28 U.S.C.A. However, following the verdict on February 3, 1958 and entry of judgment on February 5, 1958, the defendant on February 14, 1958 moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion for judgment notwithstanding the verdict had no legal effect. First, it was untimely and, secondly, it had not been preceded by a motion for a directed verdict on the second count. Therefore, we shall treat the motion exclusively as one made under F.R.Civ.P. 59(a) for a new trial. This motion was denied by the district judge on March 25, 1958 and thereupon the above notice of appeal from the judgment was filed by the defendant.

In Aberlin v. Zisman, 1 Cir., 1957, 244 F.2d 620, certiorari denied 355 U.S. 857, 78 S.Ct. 84, 2 L.Ed.2d 63, we indicated that where a motion for a new trial was denied an appeal would lie from the denial of that motion and such appeal would permit the appellant to assert any alleged errors which entered into and infected the judgment, the existence of which errors would make it an abuse of discretion for the district court to deny the motion for a new trial. However, it was also made clear in Peterman v. Indian Motorcycle Company, 1 Cir., 1954, 216 F.2d 289, that where there was a denial of a motion for a new trial the appellant could choose to appeal from the judgment itself rather than from the order denying his motion for a new trial, and such appeal would also present any alleged errors which entered into and infected the judgment, as, for instance, alleged erroneous rulings at the trial or in instructions to the jury. Cf. Di Giovanni v. Di Giovannantonio, 1956, 98 U.S. App.D.C. 147, 233 F.2d 26. In the instant case the grounds of the defendant's motion for a new trial related to alleged errors incurred in the course of the trial as contrasted with such a ground as newly discovered evidence. These errors consisted of allegedly incorrect instructions to the jury, the inconsistency of the jury's answer to a written interrogatory with a preliminary jury report asking for further instructions on the law, the insufficiency of the evidence and that the verdict was contrary to the law and the evidence.

The main thrust of the defendant's brief urges that as a matter of law the evidence did not justify a verdict for the plaintiff. However, as pointed out above, no motion was ever made by the defendant for a directed verdict and therefore this question is not properly before us. Moore v. United States, 1893, 150 U.S. 57, 61, 14 S.Ct. 26, 37 L.Ed. 996; Boudreaux v. Mississippi Shipping Company, 5 Cir., 1955, 222 F.2d 954; Glendenning Motorways v. Anderson, 8 Cir., 1954, 213 F.2d 432; Harriman v. Midland Steamship Line, Inc., 2 Cir., 1953, 208 F.2d 564; Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 1941, 122 F. 2d 350; Slip Scarf Co. v. Wm. Filene's Sons Co., 1 Cir., 1923, 289 F. 641. See Home Ins. Co. of New York v. Davila, 1 Cir., 1954, 212 F.2d 731, 733; United States v. Harrell, 8 Cir., 1943, 133 F.2d 504, 506; 6 Moore's Federal Practice, § 59.08 5n35, 5 ibid. § 50.05 1.

Although the defendant asserted in her motion for a new trial that the district judge erred in three instructions to the jury, two of these alleged errors are not relied upon in her brief and therefore will not be discussed in this opinion. The third alleged error, although not claimed directly in the defendant's brief to be the ground upon which reversal is sought, is dependent upon the same arguments that were made in support of the defendant's position that the evidence does not justify a verdict for the plaintiff. If this allegedly erroneous instruction was properly objected to in the district court as required by F.R.Civ.P. 51 the legal necessity of its inclusion in the judge's charge will be considered in our determination as to whether the district judge abused his discretion in denying the defendant a new trial. In order to make clear the background of the instruction in question, it is necessary to set forth the factual situation presented to the jury.

It appears that Miss Sears first met Pauly in March of 1954, when he sold her two horses for $35,000. In May of 1954, apparently on the recommendation of Pauly, Miss Sears purchased a twenty horse stable and cottage in Santa Barbara, California, close by some undeveloped land recently purchased by Pauly. Shortly thereafter Miss Sears, again apparently acting with the advice of Pauly, purchased more horses in an effort to build a racing stable and these horses, along with the two others purchased from Pauly, were sent to Miss Sears' Santa Barbara property to be cared for by Pauly. In August, 1954 Miss Sears invited Pauly east to Saratoga, New York, to advise her on the purchase of some additional horses for her racing stable and three horses were purchased at a total cost of $118,000. Pauly testified that while at Saratoga, Miss Sears suggested that he become the trainer and manager of her horses. On the following day, which was Sunday, August 15, 1954, at Miss Sears' home in Pride's Crossing, Massachusetts, Pauly testified that the defendant renewed her offer. In the face of his hesitation, as he was reluctant to give up his amateur riding status, Pauly testified that Miss Sears stated "* * * you will be with me for life and you have not to worry about you and Mrs. Pauly." Pauly then accepted this offer. On the following day he left for Saratoga with two of the defendant's saddle horses which were to be shipped from Saratoga, together with the three horses purchased there, to the Santa Barbara stable by train. On Thursday, August 19, 1954, Miss Sears in a letter to Pauly stated "You don't know how overjoyed I am to think that you are taking care of my animals — It is so wonderful, and I do hope they are going to run fast." About this time Pauly had been negotiating with the Aga Khan for the purchase by Miss Sears of several race horses. In September after conferring with Miss Sears in Boston, Pauly traveled to Europe at the Aga Khan's expense and purchased several costly race horses for Miss Sears. Before leaving Europe, Pauly was given the horse, Mizban, by the Aga Khan, and in September 16, 1954, he wrote to Miss Sears that "I took Mizban, I can't take any gifts involved in a deal, for which you paid high prices. Therefore, please take Mizban as your horse and I shall transfer the ownership to you, as soon as I am back home." Miss Sears admitted that she received this horse from the plaintiff without paying anything for it. Later...