Baruch v. Beech Aircraft Corporation
| Citation | 172 F.2d 445 |
| Decision Date | 31 January 1949 |
| Docket Number | No. 3765.,3765. |
| Parties | BARUCH v. BEECH AIRCRAFT CORPORATION. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Paul R. Kitch, of Wichita, Kan. (Howard T. Fleeson, Hommer V. Gooing, and Wayne Coulson, all of Wichita, Kan., on the brief), for appellant.
W. Eugene Stanley, of Wichita, Kan. (Claude I. Depew, Lawrence Weigand, William C. Hook, and Lawrence E. Curfman, all of Wichita, Kan., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
We are petitioned to remand this appeal to allow the trial court to entertain a motion for a new trial under Rule 60, Federal Rules of Civil Procedure, 28 U.S.C.A. based upon newly discovered evidence in the nature of testimony of two witnesses, who, in a subsequent proceedings, are said to have given materially different, if not contradictory, testimony on a decisive issue in this suit. It is said that the difference in the testimony of the two witnesses is such as to warrant a new trial.
The appeal has been perfected, the record filed, and we should not remand it, without decision on the merits, unless we can say that the variance or irregularity in the testimony is such as to make it reasonably apparent that, with the facts before it, the trial court would be disposed to grant a new trial.
It also seems to be the general rule that in the absence of unusual or extraordinary circumstances, the trial court will not grant a new trial on newly discovered evidence, which is intended to or has the effect of discrediting or impeaching the testimony of the movant's witnesses in the original trial. See Marshall's U. S. Auto Supply, Inc., v. Cashman, 10 Cir., 111 F.2d 140; Arkansas-Missouri Power Corp. v. City of Rector, 8 Cir., 164 F.2d 938; Ratliffe v. Wesley Hospital and Nurses' Training School, 135 Kan. 306, 10 P.2d 859; American Juris. on New Trial, Sec. 167-8-9. The cases are not agreed upon what constitutes an unusual or extraordinary circumstance, but the manifest purpose of the rule is to discourage new trials based upon after-thoughts, while at the same time preserving the power of the court to correct gross injustice, or rectify a fraud. Annotations 74 A.L.R. 757 and 33 A.L.R. 550.
From the record before us, it appears that the appellant, Belle W. Baruch, purchased an airplane from the Beech Aircraft Corporation of Wichita, Kansas, and sent her pilot and mechanic to Wichita to accept delivery. The plane was delivered, but crashed soon after the take-off, killing the pilot, the mechanic and a passenger, and wrecking the plane. Baruch brought this suit against the manufacturer for negligently permitting the pilot to attempt to take the plane off while in an intoxicated condition. Upon a trial of the case, the court found that Beech Aircraft was negligent through its agents in permitting the pilot to attempt to fly the plane, but that the pilot and mechanic were guilty of contributory negligence. Whereupon, Baruch invoked the doctrine of last clear chance, contending that the pilot's state of intoxication rendered...
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Kawauchi v. Tabata
...could compel a contrary result or negative the trial judge's findings of fact in support of his conclusion. Baruch v. Beech Aircraft Corp., 172 F.2d 445 (10th Cir. 1949). As I also do not find any of the remaining errors urged on appeal to be meritorious, I would affirm the judgement entere......
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...where the showing reasonably indicates that, if leave is granted, the trial court might properly grant the motion. Baruch v. Beech Aircraft Corp., 172 F.2d 445 (10th Cir.), cert. denied, 338 U.S. 900, 70 S.Ct. 251, 94 L.Ed. 554 (1949). A separate problem is presented where the appellate cou......
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Terrel v. Duke City Lumber Co., Inc., 878
...in those cases where it is reasonably apparent that the Trial Court would be disposed to grant such a motion. Baruch v. Beech Aircraft Corporation, 172 F.2d 445 (10th Cir. 1949). After having read the briefs and other information furnished and heard the arguments of counsel we were not prep......
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...the issue of disqualification. See Zig Zag Spring Co. v. Comfort Spring Corp., 200 F.2d 901, 907-908 (3 Cir.1953); Baruch v. Beech Aircraft Corp., 172 F.2d 445 (10 Cir. 1949). So treating it, we deny the motion. The statute, 28 U.S.C. § 455, directs that "any justice or judge of the United ......