Chicago and North Western Railway Company v. Britten

• Decision Date: 19 April 1962
• Docket Number: No. 16915-16917.,16915-16917.
• Citation: 301 F.2d 400
• Parties: CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant, v. Norbert W. BRITTEN, Special Administrator of the Estate of Joyce G. Britten, Appellee. CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant, v. Marilyn A. BRITTEN, a minor, by Norbert W. Britten, her father, and next friend, Appellee. CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant, v. Jeanette L. BRITTEN, a minor, by Norbert W. Britten, her father and next friend, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

301 F.2d 400 (1962)

CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant, v. Norbert W. BRITTEN, Special Administrator of the Estate of Joyce G. Britten, Appellee.

CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant, v. Marilyn A. BRITTEN, a minor, by Norbert W. Britten, her father, and next friend, Appellee.

CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant, v. Jeanette L. BRITTEN, a minor, by Norbert W. Britten, her father and next friend, Appellee.

Nos. 16915-16917.

United States Court of Appeals Eighth Circuit.

April 19, 1962.

R. D. Neely, Omaha, Neb., made argument for appellant. H. B. Otis and Tyler B. Gaines, Omaha, Neb., were with him on the brief.

No brief was filed for appellees but Joseph P. Inserra, Omaha, Neb., made argument in their behalf.

Before VOGEL and RIDGE, Circuit Judges, and DEVITT, District Judge.

VOGEL, Circuit Judge.

These three actions were brought by the plaintiffs to recover damages resulting from a collision between a Chicago and North Western Railway Company train and an automobile driven by one Richard C. Ehrhorn and owned by Walter Ehrhorn, the accident occurring at a crossing a short distance west of the city limits of Omaha, Nebraska, on April 7, 1956. The three cases were consolidated for trial before a jury. On February 4, 1961, the jury returned verdicts against the plaintiffs and in favor of the defendant Chicago and North Western Railway Company and in favor of the plaintiffs and against defendant Richard C. Ehrhorn. On the same date the trial court directed that entry of judgment on the verdicts be withheld until further order of the court. Subsequently, and on April 3, 1961, judgments on the verdicts were properly entered. On April 10, 1961, plaintiffs moved to set aside the verdicts and judgments and to grant plaintiffs a new trial as to the defendant railway company only. Other motions were also filed — by Ehrhorn for a remittitur in two of the cases, and for judgment notwithstanding the verdict or in the alternative for a new trial as to him only in all three cases. On September 29, 1961, the trial court, after reviewing the history of the three cases and their trial resulting in the verdicts and judgments as aforesaid, stated, inter alia:

"* * * I have concluded that the verdicts of the jury in all three cases were erroneous, and that the interests of justice require that a new trial be granted. Accordingly,

"It is ordered:

"1. That the motions of the plaintiffs in all three cases for a new trial as to the defendant, Chicago and North Western Railway Co. only, be and they hereby are denied.

"2. That the motions of the defendant, Richard C. Ehrhorn, in cases Nos. 0555 and 0556 for remittitur be and they hereby are overruled.

"3. That the motions of the defendant, Richard C. Ehrhorn, for judgment notwithstanding the verdict or, in the alternative, granting Richard C. Ehrhorn a new trial be and they hereby are overruled.

"4. That the Judgments heretofore entered in cases No. 0555, 0556 and 0557 be and they hereby are set aside.

"5. That a new trial as to all parties in cases No. 0555, 0556 and 0557 be and it hereby is granted."

It is this order granting a new trial which is challenged on appeal. The single appellant here is defendant railway company. The only appellees are the three plaintiffs. We shall, in the interests of clarity, continue to designate the parties as they were in the trial court.

Defendant railway company in its brief on appeal makes two points:

1. That the order of the District Court granting a new trial is reviewable by a Court of Appeals, where the sole question presented is whether or not the District Court had jurisdiction to enter such order.

2. The order of the District Court granting new trials to the parties entered more than six months after entry of judgments, on grounds supplied of the court's own initiative, violated the provisions of Rule 59(d), Federal Rules of Civil Procedure, 28 U.S.C.A., and the court was without jurisdiction or power to make such order.

The plaintiffs filed no brief in resistance thereto but their counsel did appear and made oral argument. Plaintiffs' position, as indicated from such oral argument, is that Rule 59(d) is not applicable, that in reality the court acted on assignment No. 11 of the plaintiffs' motion to set aside verdicts and judgments and grant plaintiffs a new trial, such motion being applicable only to defendant railway company. Assignment No. 11 is as follows:

"11. For the reason that the verdict of the jury is so clearly wrong that it indicates that it was found through mistake or other means not apparent in the record."

No particulars such as required by Rule 7(b) (1), Federal Rules of Civil Procedure, 28 U.S.C.A., are set forth or even hinted at.

Ordinarily the granting or denial of a new trial rests within the sound discretion of the trial court. There is no appeal therefrom excepting for clear abuse of such discretion and then only on final judgment. Gallon v. LloydThomas Co., 8 Cir., 1958, 261 F.2d 26, at pages 27-28, and cases cited therein.

However, as this court said in the recent case of Tsai v. Rosenthal, 8 Cir., 1961, 297 F.2d 614, 616:

"Where the jurisdiction of the court to vacate judgment and grant a new trial is challenged, an appeal will lie to review the power or jurisdiction of the court to make such order. Phillips v. Negley, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed. 1013; Cooper v. Midwest Feed Products Co., supra 8 Cir., 1959, 271 F.2d 177; Jackson v. Wilson Trucking Corp., 100 U.S.App.D.C. 106, 243 F. 2d 212; Kanatser v. Chrysler Corp., 10 Cir., 199 F.2d 610; City of Manning v. German Ins. Co., 8 Cir., 107 F. 52."

It is the claim of the defendant railway company that due to the fact that more than ten days expired following the entry of the judgments, the trial court was without jurisdiction to enter the order complained of because such order was of its own initiative. Rule 59, Federal Rules of Civil Procedure, 28 U.S. C.A., provides:

"(d) On Initiative of Court. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor."

Examination of the motions for new trial submitted by plaintiffs and by defendant Ehrhorn reveals that a total of some thirty-four grounds are attempted to be set forth. With the exception of two assignments of error made by plaintiff (one alleging negligence in the use of excessive speed on the part of the railway company and the second charging negligence through failure to keep a proper look-out), all are no more than barren assertions — e. g., "For the reason that the verdict is not sustained by the evidence", "For the reason that the verdict is contrary to law", assignment No. 11, supra, etc. They are completely unbuttressed by the particulars required in Rule 7(b) (1), Federal Rules of Civil Procedure. See Marshall's U. S. Auto Supply, Inc. v. Cashman, 10 Cir., 1940, 111 F.2d 140, 141-142, certiorari denied 311 U.S. 667, 61 S.Ct. 26, 85 L.Ed. 428, where such type grounds were analyzed, discussed and rejected as inadequate and defective and the granting of a new trial based thereon was held to be an abuse of judicial discretion. See also Lynn v. Smith, D.C.W.D.Pa., 1961, 193 F.Supp. 887, 888; United States v. 64.88 Acres of Land, D.C.W.D.Pa., 1960, 25 F.R.D. 88, 89-90; 6 Moore's Federal Practice, § 59.09(1), p. 3844 and Cum.Supp. 1961, p. 120 (2nd Ed.).

Be that as it may, the trial court here expressly denied and overruled the motions before it, and we think correctly so. But the trial court then granted a new trial as to all parties. In so doing, the court made it abundantly clear that it was acting on its own initiative — "I have concluded that the verdicts of the jury in all three cases were erroneous, and that the interests of justice require that a new trial be granted." The trial court, by specifically denying plaintiffs' and defendant Ehrhorn's motions for a new trial, was thereafter pointedly acting on its own initiative.

It is noted that the judgments based upon the...