Cahill v. Mayflower Bus Lines
| Decision Date | 15 August 1934 |
| Citation | 7 F. Supp. 869 |
| Parties | CAHILL v. MAYFLOWER BUS LINES, Inc., et al. |
| Court | U.S. District Court — Southern District of New York |
Lynch, Cahn & Weed, of White Plains, N. Y., for plaintiff.
Philip S. Rivlin, of New York City, for Mayflower Bus Lines, Inc.
John M. Gibbons, of New York City (Edward R. Brumley, of New York City, of counsel), for New York, N. H. & H. R. Co.
This case was argued before me on April 20. I regret the delay in disposing of it. It has been impossible, however, earlier to take it up, because since the briefs came in following the argument, save for a short vacation, my time has been completely absorbed in other court work having priority.
While a passenger on a bus of the defendant bus line, the plaintiff was hurt. The injury resulted from a collision of the bus with an automobile truck. The place of collision was a bridge on the Boston Post Road, where the highway passes over the track of the defendant railroad company in the village of Rye, Westchester county. The damage to the plaintiff was great. The plaintiff charges that it was due to the negligence of both the bus line and the railroad company.
The accident occurred on March 17, 1932. The trial was in January, 1934. It was presided over by Judge Coleman. It resulted in a verdict for the plaintiff on January 9 (Minutes, p. 707). A motion by the railroad company to set it aside was denied on February 6 (pages 708-711).
At the trial the railroad company moved for dismissal of the complaint and for the direction of a verdict in its favor. On these motions decision was reserved until after verdict (pages 673-674). On March 9, the plaintiff served a notice of motion to continue the trial for the purpose of enabling him to move (a) for a severance as to and the direction of entry of judgment on the verdict against the bus line and (b) for a mistrial or new trial as against the railroad company, with leave to serve an amended complaint. This was returnable March 16.
On March 14 Judge Coleman died, without having decided the reserved motions or the March 9 motion. Thereafter two further motions were made. By order to show cause dated March 20 the railroad company noticed a motion (a) for the designation of another judge to pass on the motions pending at the time of the death of Judge Coleman and (b) for an order granting its motion for a directed verdict. By order to show cause dated March 22 the plaintiff noticed a motion (a) to restore the case to the calendar for trial and (b) to permit service of the previously proposed amended complaint.
In due course the case was assigned to me. The motions noticed by the orders to show cause came on for hearing before me while I was sitting under my regular assignment in the motion part. The plaintiff withdrew his motion covered by the notice of March 9 and the railroad company does not press its motion at the trial for dismissal of the complaint.
The plaintiff insists that neither the court nor any successor judge is authorized to pass on the railroad company's motion at the trial for the direction of a verdict and that a mistrial has resulted, as well as that he should now be allowed to serve an amended complaint. The railroad company insists that the successor judge — or, to put it more precisely, the court with a successor judge sitting — is authorized to decide the motion for a directed verdict and should grant it.
Out of these matters there arise three controlling questions, as follows:
1. May the court, presided over by a successor judge, rule on the motion of the railroad company for the direction of a verdict?
2. If so, is the company entitled to prevail on that motion?
3. If not, should the plaintiff be allowed to serve the amended complaint?
In advance of taking up the questions stated, a few preliminary observations should be made.
The oral argument and the briefs took a wide range.
It was said by counsel for the plaintiff that in order to equip myself to consider the motion for a directed verdict it would be necessary for me to read the entire record of the testimony taken at the trial and that, even then, I could not fairly pass on it because of my not having seen the witnesses.
I have read all parts of the stenographic minutes of the testimony referred to by either counsel, as well as numerous other parts. After doing this (without determining that other grounds are incapable of fair disposition at present), I have concluded, with respect to the motion for a directed verdict, to deal with only a single ground urged before Judge Coleman and urged before me in its support, namely, the claim by the railroad company that certain notices served on it by officials of the village of Rye (Exhibits 18-21) were insufficient to constitute the notice prescribed by section 93 of the Railroad Law as a condition precedent to its liability upon a cause of action such as is alleged against it in the complaint. In construing these instruments — conceded at the trial (Minutes, pp. 254-257) and conceded before me to constitute the only notice given — the credibility of witnesses and the weight of testimony cut no figure. The sole problem is one of interpretation of documents, in conjunction with ascertainment of the meaning of the statute.
The motion of the plaintiff for leave to serve an amended complaint having been made after the death of Judge Coleman, from the standpoint of power of the court, on its face, it would seem obvious that another judge can pass on it.
Turning to the merits, the first inquiry is whether I have power to determine the motion for a directed verdict.
In 1934 in Life & Fire Ins. Co. of New York v. Wilson, 8 Pet. 291, 303, 8 L. Ed. 949, speaking of the authority of a successor judge to grant a new trial after the death of the trial judge, it was said:
Quite obviously the quoted clause, in the sweeping terms employed, is dictum. Nevertheless, it seems to me that it accurately defines the power of a court, with a successor judge sitting, to determine matters sub judice which remained undecided in the hands of a predecessor judge when he died, resigned, or in any other way ceased to hold office. My attention has not been called to, and I have not discovered, any authoritative case which has modified the rule as phrased in the statement of it by the Supreme Court itself so many years ago.
It is settled for this court that a successor judge may impose sentence where there has been a conviction in a criminal case tried through the rendition of verdict before, but no sentence actually imposed by, the trial judge. Chin Wah v. United States (C. C. A.) 13 F.(2d) 530, 532. It seems to me impossible, and certainly it is impossible in principle, to distinguish this holding so as to refuse it application here. Unless sentence has been imposed in a case where there has been a conviction, it is unfinished. A case in which a ruling on a motion has been reserved, and not made, is no less and no more unfinished than is a case in which it remains to sentence the defendant. It is because, and as I see it it is only because, the court has the power as announced in the Wilson Case, supra, that sentence may lawfully be imposed by a successor judge.
It is plain, and I believe is undisputed, that under the reservation made by him at the trial, if still alive, Judge Coleman could determine the motion for a directed verdict. Hoffman v. American Mills Co. (C. C. A.) 288 F. 768, 773; Clemence v. Hudson & M. R. Co. (C. C. A.) 11 F.(2d) 913, 915; Bohenik v. Delaware & Hudson Co. (C. C. A.) 49 F.(2d) 722, 724; Italian Star Line v. U. S. Shipping Board E. F. Corp. (C. C. A.) 53 F.(2d) 359, 360, 80 A. L. R. 576. Cf. Royal Card & Paper Co. v. Dresdner Bank (C. C. A.) 27 F.(2d) 791; Isaacson v. United States (D. C.) 3 F. Supp. 350. Does his death make a difference in the power of the court to act? I think not.
When the letters to show notice to the railroad company of alleged defects at the bridge were put in by the plaintiff, Judge Coleman explained to counsel, and (at least by silence) there was acquiescence in, his plan to reserve decision on the effect of these writings until after the verdict had been rendered (Minutes, p. 255). At the close of the testimony when the railroad company moved to dismiss the complaint, he put on the record a stipulation designed to carry out the plan (Minutes, p. 673). The railroad company then moved for a directed verdict and Judge Coleman said (page 674): "I will reserve decision upon that motion also under a stipulation that I may decide each one of these motions after the rendition of the verdict and in the absence of the jury and in the absence of counsel, and I note an exception now in favor of any party ruled against."
Counsel for the railroad company assented to the procedure (page 675). While counsel for the plaintiff did not expressly assent, he interposed no objection (pages 673-679a).
For the plaintiff it is argued that the reservation was to Judge Coleman alone. I assume that the basis for this contention is that the judge employed the pronoun "I." I think, however, that the reservation was not to Judge Coleman personally, but was to the court itself as a court. Cf. In re United States, 194 U. S. 194, 24 S. Ct. 629, 48 L. Ed. 931; Craig v. Hecht, 263 U. S. 255, 273-276, 44 S. Ct. 103, 68 L. Ed. 293. If so, then it is unequivocally plain that there was consent by both sides to the procedure as he outlined it. Otherwise, the word "stipulation" used by him would be rendered meaningless.
If I be correct in construing the action at the trial as an assent by the plaintiff to the decision by the court after...
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