Baltimore SS Co. v. Phillips

• Decision Date: 09 November 1925
• Docket Number: No. 47.,47.
• Citation: 9 F.2d 902
• Parties: BALTIMORE S. S. CO. et al. v. PHILLIPS.
• Court: U.S. Court of Appeals — Second Circuit

9 F.2d 902 (1925)

BALTIMORE S. S. CO. et al. v. PHILLIPS.^*

No. 47.

Circuit Court of Appeals, Second Circuit.

November 9, 1925.

Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y., and Irving L. Evans, of New York City (Joseph M. Dreyer and Edgar G. Wandless, both of New York City, of counsel), for plaintiffs in error.

Edgar J. Treacy, of New York City, for defendant in error.

Before ROGERS, MANTON, and HAND, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

The first point is whether the cause was before the District Court at the time when Judge Inch vacated the order dismissing the complaint and set down the case for trial. The term had not yet expired, because 90 days had not passed since the entry of the judgment, and the rules of the District Court for the Eastern District of New York then in force extended all terms for such purposes for that period. Except for the writ of error, the judgment was therefore still in gremio, and the court might have taken any action in respect of it which seemed to it proper. However, the writ had removed the cause into this court, and, while outstanding, it prevented any action by the District Court without our leave.

The parties and the learned judge plainly proceeded under the authority of Roemer v. Simon, 91 U. S. 149, 23 L. Ed. 267. That was the case of an application to the Supreme Court to remit to the Circuit Court for the admission of new evidence. The decree appealed from was final and the term had expired, for which reason the court denied the motion, as the Circuit Court could have done nothing in the cause after remittitur. But they laid down the proper practice, if the term had been open, which is for the appellant to apply to the lower court to reopen the decree, and for that court to request the upper court to remit.

Of course, the appellant may always move to dismiss his appeal (Greene v. United, etc., Co., 124 F. 961, 60 C. C. A. 93 C. C. A. 1), and no request is necessary for that purpose. But in so doing he risks all on his cast in the District Court, for it may be too late after decision for a new appeal. Similarly, if on the appellant's motion the District Court asks for a remittitur before deciding the motion, as was apparently the case in Mossberg v. Nutter, 124 F. 966, 60 C. C. A. 98 (C. C. A. 1), and as the District Court did in the case at bar. The safest way is for the District Court, if disposed to entertain the motion at all, to ask leave of this court to do so. If this is given, it may proceed, the appeal still pending. Should it decide to reopen, it may then request remittitur, and the appellant will have risked nothing. This was the course approved by the Circuit Court of Appeals for the Sixth Circuit in Meccano v. Wagner (C. C. A.) 235 F. 890, and we also approve it. Sundh Elec. Co. v. Cutler-Hammer Mfg. Co., 244 F. 163, 170, 171, 156 C. C. A. 591.

In the case at bar it does not appear that the District Court entertained the motion on the merits at all before asking for the remittitur. The affidavits answering the rule nisi were sworn to on April 28th, and the cause was remitted on request of the court on May 2d. While the District Court should not entertain the motion on the merits without leave, obviously it must read the papers, so far as to learn the nature of the application and whether it will proceed with it to request either leave of this court, or a remittitur. In requesting a remittitur, perhaps the District Court imperiled the plaintiff's rights to any review, if it remained of the same opinion, but still it got jurisdiction. If it was necessary for the plaintiff specifically to move the District Court to request a remittitur because of this danger to his rights, that was an error of which the defendants may not complain. Assuming it was also error to request the remittitur without notice to the defendants, which might have an interest in maintaining the pendency of the writ, that is not assigned here, and we see no reason to take it up nostra sponte. The writ was automatically dismissed on the remittitur, the District Court got jurisdiction, and the point is not well taken.

On the question of res judicata the pleadings show that the issue of the negligence of the ship's officers was not presented in the admiralty suit. It is true that the libel in article third alleged that the respondents had been guilty of negligence, not only in failing to provide Phillips with a safe place to work and in furnishing unseaworthy and insufficient gear, but also "in failing to use reasonable care to avoid striking him." The last clause, standing alone, might have admitted evidence of the negligence of his fellow servants in handling seaworthy gear, but it did not so stand. The respondents excepted to the libel because the allegations of negligence were "too general, vague and indefinite," and asked that the libelant should allege "specific and definite acts of alleged negligence." The exceptions apparently never came on for hearing, but instead the libelant prayed leave to amend "by adding the following specifications of negligence to the third paragraph (sic) of the libel." Then follows the proposed amendment: "Libelant alleges the negligence claimed consists" in the failure of the respondent, United States of America, "to provide a proper cleat, in manning the ship with incompetent officers, and in failing in special care of the libelant because of his youth."

We think that this amendment, being in answer to an exception for informality in the statement of the cause of suit, was plainly intended as a videlicet to the general allegations of article 3. True, the prayer was to amend by "adding the following specifications of...