Aetna Casualty & Surety Co. v. Yeatts

Decision Date22 August 1941
Docket NumberNo. 4794.,4794.
PartiesÆTNA CASUALTY & SURETY CO. v. YEATTS.
CourtU.S. Court of Appeals — Fourth Circuit

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Robert G. Butcher, of Richmond, Va. (A. N. Heflin, of Richmond, Va., on the brief), for appellant.

Malcolm K. Harris and John W. Carter, Jr., both of Danville, Va. (Maitland H. Bustard, of Danville, Va., on the brief), for appellee.

Before PARKER and SOPER, Circuit Judges, and H. H. WATKINS, District Judge.

PARKER, Circuit Judge.

This is the second appeal in a suit originally instituted to obtain a declaratory judgment with respect to the coverage of a policy of indemnity insurance. Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 99 F.2d 665. Following our first decision, the defendant Yeatts filed an amended answer alleging that consent judgment had been entered in the suit for damages filed against him in the state court and asking recovery thereof, together with costs, interest and attorney's fees, against the insurance company, plaintiff in the suit for declaratory judgment. The company denied liability on the ground that the defendant Yeatts was engaged in the performance of a criminal abortion at the time he incurred the liability for which the recovery was had against him, and that such liability was expressly excluded from the coverage of the policy. The question as to whether the defendant Yeatts was engaged in such criminal conduct was submitted to the jury, and from verdict and judgment in his favor the plaintiff brings this appeal.

There was testimony below from which the jury would have been amply justified in finding in favor of the plaintiff insurance company on the issue submitted; but the defendant himself was examined as a witness and, if his testimony is believed, he was guilty of no criminal act. No motion for directed verdict was made by the plaintiff, nor was the sufficiency of the evidence to sustain a finding in favor of the defendant challenged in any other way before verdict. After verdict, plaintiff moved for judgment non obstante veredicto and also for a new trial, on the ground that the verdict was contrary to the credible evidence in the case; and exceptions directed to denial of these motions constitute the only points presented by the appeal.

Even if a motion for directed verdict had been made by plaintiff, it is clear that same should have been denied as should, also, any motion for judgment non obstante veredicto based thereon; for it is too well settled to warrant discussion that, on such motion, the evidence must be taken in the light most favorable to the party against whom the directed verdict is asked and that all conflicts must be resolved in his favor. But here there was no motion for directed verdict to serve as a basis for the motion for judgment non obstante veredicto; and such judgment can be entered on the ground of the insufficiency of the evidence only where motion for directed verdict has been duly made. Rules of Civil Procedure 50(b), 28 U.S.C.A. following section 723c; Baten v. Kirby Lumber Corp., 5 Cir., 103 F.2d 272; Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636; Montgomery Ward & Co. v. Duncan 311 U.S. 243, 61 S. Ct. 189, 85 L.Ed. 147. In addition, it is well settled that, where the sufficiency of the evidence has not been challenged in this or some other appropriate way during trial, we have no power to review its sufficiency on appeal. Pocahontas Coal & Coke Co. v. Cook, 4 Cir., 74 F.2d 878 and cases there cited. As said by Judge Sibley in Baten v. Kirby Lumber Corporation, supra 103 F.2d 274, "Rule of Civil Procedure 50, 28 U.S.C.A. following section 723c, does not do away with but emphasizes the necessity of a motion for a directed verdict to raise the legal question whether the evidence is sufficient."

The motion to set aside the verdict and grant a new trial was a matter of federal procedure, governed by Rule of Civil Procedure 59 and not subject in any way to the rules of state practice. On such a motion it is the duty of the judge to set aside the verdict and grant a new trial, if he is of opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict. The exercise of this power is not in derogation of the right of trial by jury but is one of the historic safeguards of that right. Smith v. Times Pub. Co., 178 Pa. 481, 36 A. 296, 35 L.R.A. 819; Bright v. Eynon 1 Burr. 390; Mellin v. Taylor 3 B.N.C. 109, 132 Eng. Reports 351. The matter was well put by Mr. Justice Mitchell, speaking for the Supreme Court of Pennsylvania in Smith v. Times Publishing Co., supra 178 Pa. 481, 36 A. 298, as follows: "The authority of the common pleas in the control and revision of excessive verdicts through the means of new trials was firmly settled in England before the foundation of this colony, and has always existed here without challenge under any of our constitutions. It is a power to examine the whole case on the law and the evidence, with a view to securing a result, not merely legal, but also not manifestly against justice, — a power exercised in pursuance of a sound judicial discretion, without which the jury system would be a capricious and intolerable tyranny, which no people could long endure. This court has had occasion more than once recently to to say that it was a power the courts ought to exercise unflinchingly." (Italics supplied).

In the same case, Mr. Justice Williams, in a concurring opinion, traces the history of the exercise of this power and sums up his conclusion as follows:

"`Trial by jury' therefore meant, at the time of Magna Charta, the investigation and decision of an issue of fact between parties litigant by 12 men, sitting as jurors, under the advice and legal direction of a law judge. When the verdict is rendered by the jury, it is to the court of which they are a part. It is recorded upon the minutes of the court, and becomes a part of the record of the trial; but it does not thereby become a judgment of the court, unless the judge is satisfied with it, and specially or by general order or rule so directs. He has a responsibility for the result no less than the jury, for it is his duty to see that right and justice are done, so far as this may be practicable in the particular case. If he is not satisfied with the verdict, it is his duty to set it aside, and grant a new trial before another jury. This was the settled practice in England as early as 1665. Forsyth, Jury Tr. 164. Lord Holt states that the practice of granting new trials, as a means of correcting the mistakes and relieving against the misconduct of juries, was in use much earlier than 1665, but accounts for its exercise not appearing in the books for the reason that, prior to that date, the action of the courts upon motions was not reported.

* * * * *

"As early, therefore, as 1665, the courts at Westminster did precisely what we have done in this case, and for the same reason. The right of trial by jury was not then supposed to give...

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