Demeretz v. Daniels Motor Freight, Inc.

• Decision Date: 10 August 1962
• Docket Number: 13846.,No. 13840,13840
• Citation: 307 F.2d 469
• Parties: Mary DEMERETZ, Appellant, v. DANIELS MOTOR FREIGHT, INC., a corporation.
• Court: U.S. Court of Appeals — Third Circuit

307 F.2d 469 (1962)

Mary DEMERETZ, Appellant, v. DANIELS MOTOR FREIGHT, INC., a corporation.

Nos. 13840, 13846.

United States Court of Appeals Third Circuit.

Argued May 14, 1962.

Decided August 10, 1962.

Daniel M. Berger, Pittsburgh, Pa. (Morris M. Berger, Berger & Berger, Pittsburgh, Pa., Charles McC. Barrickman, Beaver, Pa., on the brief), for plaintiff-appellant.

Theodore O. Struk, Pittsburgh, Pa. (R. E. Wayman, Dickie, McCamey, Chilcote & Robinson, Pittsburgh, Pa., on the brief), for defendant.

Before KALODNER, HASTIE and SMITH, Circuit Judges.

HASTIE, Circuit Judge.

This is a diversity action for personal injury and property damage caused by a collision between plaintiff's passenger automobile and defendant's tractor-trailer. On April 19, 1961, a jury returned a verdict in favor of the plaintiff in the amount of $42,500. On April 20th, judgment was entered on this verdict. On April 25th, defendant filed a timely motion for a new trial, assigning the following grounds:

"1. The verdict is against the law and the evidence.

"2. The Court erred in permitting a witness to testify relative to a statement allegedly made by the defendant\'s driver.

"3. The Court erred in permitting maps to be introduced into evidence.

"4. The Court erred in permitting the plaintiff to attack a witness on collateral matter."

This motion was denied on September 20, 1961.

On October 18, 1961, the defendant filed a petition for "re-argument and reconsideration" of its motion for a new trial. The same day, without notice to the plaintiff or any hearing, the court entered the order from which this appeal has been taken. The order recited that the court was acting upon consideration of the motion for a new trial in the light of the motion for reargument. Its operative language is as follows:

"It is ORDERED that:

"Plaintiff is directed to file, within twenty (20) days a stipulation remitting all monies awarded under the verdict in excess of $32,500, and upon her failure to do so, the previous order of this Court denying defendant\'s motion for new trial is hereby vacated, and a new trial as to damages alone is granted.

"It is further ORDERED that if a remittitur is filed as directed, a new trial is denied."

Claiming that the court was without power thus to require the plaintiff either to remit part of her recovery or to submit to a new trial as to damages, plaintiff now asks that we review this order either by appeal under Section 1291 of Title 28 United States Code, or by writ of certiorari under our general power to "issue all writs necessary or appropriate in aid of * * * our jurisdiction * * * and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a).

Our first consideration is whether the order of October 18, 1961 is a final judgment appealable under Section 1291 of Title 28. In this connection we view that order as an order granting a new trial. It expressly provided for a new trial if the plaintiff should fail to file within twenty days a stipulation of remittitur. Twenty days elapsed without such a filing and thereafter plaintiff took this appeal. Thus, when the appeal was filed the originally conditional order for a new trial as to damages had become absolute and unqualified.

We have concluded that this case presents the extraordinary situation in which an order granting a new trial, which normally would be interlocutory, is treated as an appealable final order. The controlling precedent is Phillips v. Negley, 1886, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed. 1013. There a defendant had filed a motion for a new trial after the expiration of the term at which a judgment had been recovered against him. He showed that without fault on his part he had remained unaware that the case had been calendared for trial, although notice had been mailed to his counsel of record. The court granted a new trial and an immediate appeal was taken on the ground that the court's power to disturb its own final judgment by further proceedings in that action had expired with the term at which the judgment had been entered. When the matter was brought to the Supreme Court on writ of error, the Court ruled that an order granting a new trial is itself reviewable as a final judgment when the challenge goes to the judicial power of the court to take that action. Apparently the Supreme Court viewed the immediate appeal as appropriate because the inquiry was in essence whether the original judgment remained in legal contemplation an effective and enforceable final order. But however doubtful the rationale of Phillips v. Negley may be, courts of appeals have repeatedly recognized its authority and applied its holding in reviewing new trial orders challenged as beyond the trial court's jurisdiction. Jackson v. Wilson Trucking Corp., 1957, 100 U.S.App.D.C. 106, 243 F.2d 212; Untersinger v. United States, 2d Cir. 1950, 181 F.2d 953; Tsai v. Rosenthal, 8th Cir. 1961, 297 F.2d 614; Gilliland v. Lyons, 9th Cir. 1960, 278 F.2d 56; see Kanatser v. Chrysler Corp., 10th Cir. 1952, 199 F.2d 610, 615-16, cert. denied, 1953, 344 U.S. 921, 73 S.Ct. 388, 97 L.Ed. 710.

It is true that in a rather unusual denaturalization case we refused to review an order of a district court setting aside a default judgment and reopening a proceeding in which the naturalization of an individual had been cancelled. United States v. Agne, 3d Cir. 1947, 161 F.2d 331. We said that the order reopening the proceeding was interlocutory and added the thought that it made no difference whether the order was attacked on jurisdictional grounds or on its merits. The original judgment had been challenged by filing a complaint in the nature of a bill of review, conceptually a separate equitable proceeding available at any time to one who sought to reopen an outstanding decree. Thus any question raised as to jurisdiction could not have been substantial. Phillips v. Negley was not even cited to this court as a relevant precedent. Whether it could have been extended to the special circumstances of the Agne case we need not decide. However, the situation now before us cannot be distinguished in any significant way from the actual situation with which the Supreme Court dealt in Phillips v. Negley. Accordingly, we are constrained to hold that we have authority under Section 1291 at this time to inquire into the power of the court below to issue its order granting a new trial. We have no doubt that the rule which generally denies an immediate appeal from an order granting a new trial is salutary. We merely recognize that Phillips v. Negley has created one narrow, perhaps anomalous, exception to this rule.

We turn now to the merits of the appeal. Final judgment for $42,500 was entered on April 20th and a timely motion for a new trial was denied on September 20th. We begin our analysis by inquiring whether on ...