Guidry v. Kem Mfg. Co.
| Decision Date | 09 October 1979 |
| Docket Number | No. 77-1492,77-1492 |
| Citation | 604 F.2d 320 |
| Parties | Michael J. GUIDRY, Plaintiff, v. KEM MANUFACTURING COMPANY, Defendant. DRACKETT PRODUCTS COMPANY et al., Defendants-Third Party Plaintiffs-Appellants, v. KEM MANUFACTURING COMPANY et al., Third Party Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Eastern District of Louisiana.
ON PETITION FOR REHEARING
(Opinion 5 Cir., 1979, 598 F.2d 402)
Before GODBOLD, Circuit Judge, SKELTON *, Senior Judge, and RUBIN, Circuit Judge.
The application for rehearing suggests two alleged errors of law in our original opinion. We have fully reconsidered each issue.
Rule 49(a) does not contemplate that the jury will decide issues of law but will return "a special written finding upon each issue of fact." It is patent that no question on the special verdict directly inquired about contribution and that the issue of contribution as a matter of law was not submitted to the jury. It is also clear that the Fact issues submitted to the jury were framed with the legal claim for indemnity in mind. However, the questions did submit to the jury resolution of the facts on which determination of the legal right to contribution would also be based. Drackett would have a legal right to contribution if in fact Kem was actively negligent in a manner that contributed to Mr. Guidry's injury. As pointed out in the original opinion, 598 F.2d at p. 407, Therefore, the Fact issue could not be resolved by the trial judge and, of course, the legal issue could not be decided without the indispensable finding of fact.
The application for rehearing fails to distinguish between issues of fact and questions (sometimes called issues) of law. Under Rule 49(a) a trial judge can decide any issue of fact omitted from the written questions but the judge cannot resolve those issues of fact that were submitted.
Counsel misapprehended the references to their role in the trial and refer to the opinion as a castigation. The opinion merely points out that in the application of Rule 49(a) all problems cannot be resolved by the trial judge alone. He needs, and...
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...from the answer to a special interrogatory. Guidry v. Kem Manufacturing Co., 598 F.2d 402 (5th Cir.), reh. denied with opinion, 604 F.2d 320, 321 (5th Cir.1979). When an insurmountable inconsistency or ambiguity is perceived, the trial court may resubmit the issue to the jury before it is d......
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...issue so omitted unless before the jury retires he demands its submission to the jury." Rule 49(a), Fed.R.Civ.P. See Guidry v. Kem Manufacturing Co., 604 F.2d 320, 321, supplementing on petition for rehearing, 598 F.2d 402 (5th Cir. 1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1318, 63 L.Ed......
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