Cheney v. Moler, 6422.

• Decision Date: 18 November 1960
• Docket Number: No. 6422.,6422.
• Citation: 285 F.2d 116
• Parties: Wayne B. CHENEY, Appellant, v. Millard MOLER, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

285 F.2d 116 (1960)

Wayne B. CHENEY, Appellant, v. Millard MOLER, Appellee.

No. 6422.

United States Court of Appeals Tenth Circuit.

November 18, 1960.

John Staley Holden, Cimarron, Kansas, for appellant.

Logan N. Green, Garden City, Kan. (Ray H. Calihan, Daniel R. Hopkins and Ray H. Calihan, Jr., Garden City, Kan., were with him on the brief), for appellee.

Before PHILLIPS, HUXMAN and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

Plaintiff-appellant initiated this suit as a claim for damages resulting from personal injuries suffered in a fight with defendant-appellee, who, in turn counterclaimed for damages arising from the altercation. The conflicting claims were submitted for determination to a jury sitting with the District Court for the District of Kansas upon instructions explaining the law of Kansas relative to assault and battery and that pertaining to liability imposed in cases of mutual combat. The trial court also instructed the jury thus:

"Four forms of verdict have been prepared for your use. It will be necessary for you to return two verdicts in this case. One verdict upon the plaintiff\'s complaint, and one verdict upon the defendant\'s counterclaim against the plaintiff. Of course, your verdicts must be consistent with one another and in accordance with the instructions and the evidence you have heard.

"If you have any difficulty with regard to which forms or the manner in which to return your verdict you may advise the Court through your bailiff."

After due deliberation and without indicating any difficulty in the consideration of the case, the jury returned two verdicts. One verdict was in favor of the plaintiff and against the defendant upon the defendant's counter-claim; the other was in favor of plaintiff and against the defendant upon plaintiff's complaint and specifically assessed no damages for the plaintiff. The court then inquired:

"The Court: Now, does counsel on either side know of any reason why the Court should not accept both verdicts and discharge the jury?

"Mr. Holden: No, Your Honor.

"Mr. Green: The defendant knows of none.

"The Court: Members of the jury, you will be discharged."

Judgment upon verdicts followed, each judgment favoring plaintiff and allowing recovery of costs but negating an allowance for damages upon his complaint. Plaintiff's two motions for new trial, timely made under Rule 59, F.R.Civ.P. 28 U.S.C.A. in which he sought a new trial upon all issues or, in the alternative upon the issue of damages only, because of inadequate damages were each denied by the trial court. This appeal is taken from the order denying a new trial and adds a procedural complication which must first be considered.

Judgment was entered February 9, 1960. The motions for new trial were made on February 18 and denied on March 21. Notice of appeal was given March 24. It follows that the appeal is timely if the notice of appeal is in form sufficient to invoke the jurisdiction of this court. See Rules 59, 73(a, b). The notice of appeal stated:

"Notice is hereby given that Wayne B. Cheney, Plaintiff above named, hereby appeals to the United States Court of Appeals for the Tenth Circuit from the Order overruling Plaintiff\'s Motion for a New Trial, and the Order overruling Plaintiff\'s motion for a new Trial on the issue of damages only, entered in this action on March 21, 1960."

It is apparent that the notice of appeal does not specifically designate the judgment or part thereof appealed therefrom as required for complete compliance with Rule 73(b). However, since the Supreme Court's per curiam opinion, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823, reversing the Ninth Circuit in State Farm Mutual Automobile Insurance Co. v. Palmer, 225 F.2d 876, the notice of appeal must be probed to determine whether or not the appeal is actually taken from a final judgment and an appeal will not be lost for what may be deemed "hypertechnical" reasons. Hoiness v. United States, 335 U.S. 297, 69 S.Ct. 70, 93 L.Ed. 16. Although the notice of appeal is unambiguous and purports to appeal from the order denying a new trial so, too, did the notice in State Farm Mutual, supra. Looking behind the form of the notice it is clear that the appeal is timely and that it attempts to probe, as did the motion for new trial, the validity of the judgment wherein plaintiff is granted judgment upon his complaint without an award of damages. We deem State Farm Mutual, supra, to be controlling and we are constrained to entertain the appeal.

The undisputed evidence shows that plaintiff lost an...