Freid v. McGrath

• Citation: 133 F.2d 350,76 US App. DC 388
• Decision Date: 23 November 1942
• Docket Number: No. 7895.,7895.
• Parties: FREID v. McGRATH.
• Court: U.S. Court of Appeals — District of Columbia Circuit

76 US App. DC 388, 133 F.2d 350 (1942)

FREID v. McGRATH.

No. 7895.

United States Court of Appeals for the District of Columbia.

Decided November 23, 1942.

Mr. Lawrence Koenigsberger, of Washington, D. C., with whom Messrs. Morris Simon and Eugene Young, both of Washington, D. C., were on the brief, for appellant.

Mr. Carlton F. Alm, of Washington, D. C., with whom Messrs. Dorsey K. Offutt and Wade H. Mitchell, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

MILLER, Associate Justice.

Appellee, Catharine McGrath, was riding as a passenger in an automobile belonging to Nathaniel Taube when it collided with an automobile belonging to appellant David A. Freid. She sued both Taube and Freid to recover damages for injuries and the cases were consolidated for trial. The verdict in the first trial was in favor of appellee, against each of the two defendants in the sum of $425. On April 30, 1940, seven days after entry of judgment on this verdict, appellee made a motion "to correct the record and enter the correct and true verdict of the jury," upon the grounds set out in the margin.¹ She supported her motion by affidavits of the foreman and of three other members of the jury. On May 2, 1940, appellant moved to strike these affidavits. On the same day the trial judge held a hearing on the pending motions. During the course of the argument, the court and counsel engaged in the conversation set out in the margin.² The court then called in ten of the jurors and questioned them concerning their verdict. Thereafter, the court and counsel engaged in the following conversation: "The Court: All right, gentlemen, what do you want to do? You say you want to file briefs? Mr. Koenigsberger: I should like to. The Court: All right; then, you proceed to file your corrected motion within two days, and then you may file a brief, if you don't want to say any more. Mr. Koenigsberger: No, sir." Italics supplied. On May 3, 1940, appellee filed the following: "Amendment Adding Motion for New Trial in the Alternative to Motion to Correct the Record and Enter the Correct and True Verdict of the Jury. The plaintiff, by her attorneys, amends her Motion to correct the record and enter the correct and true verdict of the jury, filed herein, and moves the Court to grant a new trial in the above-entitled cause in the alternative, in event the Court over-rules the Motion to correct the record and enter the correct and true verdict of the jury, and for reason therefor refers to the reasons set out in the original Motion, and plaintiff further states that in the event the Court does not correct the record and enter the correct and true verdict of the jury, the plaintiff should have a new trial." Italics supplied in part. Appellee's points and authorities filed in support of the motion for a new trial stated: "In support of Motion for new trial, plaintiff relies upon the affidavits of the jurors previously served upon counsel for defendant in conjunction with the Motion to correct the record and enter the correct and true verdict of the jury, filed herein." On a date not revealed by the record appellee filed the following: "Further Amendment to Motion for New Trial. The plaintiff further amends her motion for new trial and moves the Court to award a new trial only on the question of damages, and for grounds therefor states as follows: The affidavits and testimony of the jurors herein and the verdict of the jury establishes beyond any doubt that the jury has decided the question of liability in this case, and that the motion for new trial should be limited to a determination by the jury of the amount of damages to be awarded to the plaintiff." On June 20, 1940, the court denied appellee's motion to correct the verdict and granted appellant's motion to strike the affidavits and testimony of the jurors from the files. Its order recited further that: "* * * the Court being of the opinion that the damages found by the jury were inadequate, the amended motion for a new trial is granted only as to the amount of the damages." On January 9, 1941, the case was again tried and the jury awarded a verdict of $2,100. This appeal followed.

Appellant assigns as error the granting of the new trial. He contends that in granting it, the trial judge acted upon his own initiative; that the order exceeded the power of the court and was invalid, because the time within which a new trial may be granted by the court on its own motion is limited to ten days after entry of judgment³ and this period was not extended by the timely filing of the appellee's motion for a new trial.⁴

The first question which we must decide is whether the order appealed from is reviewable. Our attention is directed to dicta, which appear in Fairmount Glass Works v. Cub Fork Coal Co.,⁵ upon the basis of which it is urged that the Supreme Court has declared a rule which forbids review, by an appellate court, of the action of a federal trial court in granting a new trial. Obviously, there is no such rule of absolute and universal operation. Otherwise, the district court might grant new trials in cases over which it had never acquired jurisdiction, as in cases tried in the municipal court; or where it had lost jurisdiction, as in cases pending on appeal in this court or in the Supreme Court and in cases long since concluded, with judgments satisfied of record; all without let or hindrance, while this court and the Supreme Court must stand by powerless to act upon the appeals of despoiled litigants.

Obviously, what the Supreme Court said in the Fairmount case was intended to apply to nothing more than timely action, by a trial court of competent jurisdiction, in a case properly pending before it, pursuant to applicable rules of civil procedure,⁶ and within the range of its discretionary power.⁷ This is conclusively shown by the following considerations: (1) On the page following that on which appears the enunciation of the supposed rule the Court said: "Under certain circumstances the appellate court may inquire into the action of the trial court on a motion for a new trial. Thus, its denial may be reviewed if the trial court erroneously excluded from consideration matters which were appropriate to a decision on the motion, Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917; Ogden v. United States 3 Cir., 112 F. 523; or if it acted on the mistaken view that there was no jurisdiction to grant it, or that there was no authority to grant it on the ground advanced, Felton v. Spiro 6 Cir., 78 Fed. 576, 581; Dwyer v. United States 9 Cir., 170 F. 160, 165; Paine v. St. Paul Union Stockyards Co. 8 Cir., 35 F.2d 624, 626-628. It becomes necessary, therefore, to determine whether the circumstances of the case at bar justify an enquiry into the trial court's refusal to set aside the verdict."⁸ Italics supplied in part. (2) On a subsequent page of the same case the Court recognized the propriety of appellate review because of error of law in the action of the trial court.⁹ (3) On the same page the Court expressly reserved opinion on the question whether the trial court's action may be reviewed on the ground of abuse of discretion.¹⁰ (4) The statement of the general rule in the Fairmount case — so far as it speaks of granting a new trial — is dictum. The order of the trial court there under review denied a new trial. The reasons referred to by the Court, in support of the rule, concern the impropriety of appellate interference with orders denying new trials. They do not apply to review of orders granting them. (5) All cases cited by the Court in support of its enunciation of the rule are, similarly, concerned with orders denying new trials. (6) The statement in the Fairmount case is limited to "granting or denying a motion for a new trial for error of fact * * *." Italics supplied.

But, fortunately, the Supreme Court has removed whatever doubt there may have been upon the subject, by its later action. Six years after the decision in the Fairmount case, it promulgated rules of civil procedure for the district courts of the United States. One of those rules requires that if a judge orders a new trial upon his own initiative he must do so not later than ten days after entry of judgment and must specify the grounds therefor.¹¹ It is idle to contend that if a trial judge fails to comply with the express terms of the rule, appellate review of his action is barred by ambiguous dicta spoken six years before its promulgation.

We come then to the question whether the trial court, in the present case, acted upon a motion, under Rule 59(a) (b), or whether it acted of its own initiative, under Rule 59(d). If it acted under the earlier paragraphs, its action was timely. If it acted under Rule 59(d), its action was not timely and its order must be reversed.

The order in controversy reads as follows: "This cause coming on for hearing upon various motions, it is this 20th day of June, A. D., 1940; Ordered, that the motion of the defendants to strike from the files the affidavits in support of the plaintiffs' motion for a new trial is granted, and the testimony of the jurors taken in open court is hereby stricken out by the court on its own motion. It is further ordered, that the motion of the plaintiffs to correct the verdict and to enter a verdict different from that returned by the jury is denied; And the Court being of the opinion that the damages found by the jury were inadequate, the amended motion for a new trial is granted only as to the amount of the damages." Italics supplied. Appellee explains the action of the judge on the theory that his language was "a mere statement of the facts and circumstances from which the court could reasonably find or infer that the jury had made a mistake;" that his statement did not constitute the grounds for granting the new trial; that the inadequacy of a verdict is important...