Gunther v. EI du Pont de Nemours & Company
| Decision Date | 23 May 1958 |
| Docket Number | No. 7652.,7652. |
| Citation | 255 F.2d 710 |
| Parties | Frank GUNTHER et ux. and Ethel and Oscar Heath, Appellants, v. E. I. DU PONT DE NEMOURS & COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
COPYRIGHT MATERIAL OMITTED
Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.
The du Pont Company, as defendant-appellee, moves the court to dismiss this appeal because plaintiffs-appellants failed to docket the record on appeal with the Clerk of this court within an extended period of 90 days from the date of filing the notice of appeal, which was fixed by the District Court under Rule 73(g) of the Federal Rules of Civil Procedure, 28 U.S.C., and Rules 9(2) and 11(1) of the Revised Rules of this court, 28 U.S.C. The judgment appealed from was entered on November 12, 1957, and the notice of appeal was filed on December 12, 1957. Since on the latter date insufficient time remained for filing the record within 40 days from the date of filing the notice of appeal, the District Court on January 16, 1958, on motion of the Clerk, extended the time until March 12, 1958. On the latter date the plaintiffs directed the Clerk to certify to this court certain portions of the record designated by them and this portion of the record was filed in this court on March 20, 1958; but it did not contain a transcript of the evidence at the trial below. The defendant's motion to dismiss the appeal was filed April 1, 1958.
The suit was brought by Frank A. Gunther and Frieda E. Gunther, his wife, and Oscar Heath and Ethel C. Heath, his wife, to secure an injunction to restrain du Pont from conducting certain explosive testing operations which were alleged to be injurious to the properties and persons of the plaintiffs, and also to recover damages for injuries alleged to have been already inflicted. Prior to the trial of the case motion was made by the defendant for a partial summary judgment as to certain claims of the Heaths, and on August 12, 1957 such a judgment was entered in favor of the defendant as to (1) the claim of Mr. Heath for personal injuries; (2) the claim of the Heaths for damages to real property occupied by them, on the ground that the property did not belong to them; (3) claim of the Heaths for damages to a chicken hatching business conducted by them on the grounds that the claims were barred by limitations as to the year 1954, and that the claims for damages for subsequent years, when the business was abandoned, were speculative and uncertain; and (4) the claim of the Heaths for an injunction restraining the defendant from carrying on its operations. The plaintiffs have not at any time noted an appeal from this judgment.
The case was tried with a jury on 10 days in September and October 1957. Issues of fact were submitted to the jury following the West Virginia practice where an injunction is prayed in nuisance cases. At the conclusion of the evidence the court directed a verdict for the defendant in respect to the claims of Mr. Gunther and Mrs. Heath for personal injuries, and the jury found in answer to specific questions that the Gunther property had not been injured and that Mrs. Gunther had not suffered personal injuries from the du Pont operations, and that these operations had been conducted in a reasonable manner.
Thereafter a motion for new trial was filed based in part on an affidavit of plaintiffs' attorney in which the charge was made, upon hearsay information, that one Harry T. Miller, who had been selected by the jury as their foreman, had made a statement after the evidence was concluded indicating a bias on his part in favor of the defendant. After a hearing this motion was overruled, and on November 12, 1957 judgment was entered for the defendant upon the claims of the Gunthers for injuries to their real property and to their persons and upon the claim of Mrs. Heath for personal injuries.
On December 12, 1957 the judge filed an opinion in which he reviewed the proceedings in the case and gave his reasons for refusing to disturb the findings of the jury, and entered judgment for the defendant upon the Gunthers' claims for damages for injury to person and property and Mrs. Heath's claim for damages for personal injuries. The judge also announced the conclusion, based on the findings of the jury, that the plaintiffs were not entitled to an injunction against the defendant, and on the same day judgment was entered denying the injunction.
It thus appears that three separate judgments in favor of the defendant have been entered in this case, (1) the summary judgment of August 12, 1957 as to certain claims of the Heaths; (2) the judgment of November 12, 1957 as to all the other claims of the plaintiffs, excepting the claim for an injunction; and (3) the judgment of December 12, 1957, denying the injunction.
On December 12, 1957 the plaintiffs filed a notice of appeal from the judgment of November 12, 1957; but no reference was made therein to the summary judgment of August 12, 1957 or to the judgment of December 12, 1957 denying the injunction.
After the appeal was noted and prior to March 12, 1958 certain proceedings took place in the District Court bearing on the questions presented by the motion to dismiss the appeal. On January 7, 1958 the plaintiffs filed a designation of the portions of the record in the trial court to be contained in the record on appeal, which included the complaints of the plaintiffs, a part of the transcript of the proceedings at the trial relating to the examination of juror Harry T. Miller on voir dire, the judge's charge to the jury, the motion for a new trial and the denial thereof, and a motion of the plaintiffs filed on the same day to insert in the record the affidavit of one J. F. Poland, another juror, with respect to statements made by juror Miller when the jury went into the jury room. In this affidavit it was stated that at the time the jury went into its room to deliberate, juror Miller urged that the jury get the case over in a hurry since it was only a scheme on Gunther's part to get money from du Pont. It was upon the information furnished by this affidavit that the plaintiffs' attorney based the affidavit which he filed with the motion for new trial. After a hearing, in which it was pointed out that the Poland affidavit should have been filed with the motion for new trial, the motion to file the affidavit was denied.
On February 3, 1958 the plaintiffs filed a list of the points on which they expected to rely on appeal, which included contentions that the judge erred in granting the summary judgment of August 12, 1957, and in his instructions to the jury, and in denying a request of several jurors, after the jury had retired, for permission to view the plaintiffs' property, and in denying the plaintiffs' motion for a new trial although the affidavits in respect to the statements of juror Miller showed that the jury was biased and that the plaintiffs did not receive a fair and impartial trial. On February 12, 1958, the defendant moved the court, under Rule 75(b) of the Federal Rules of Civil Procedure, to require the plaintiffs to furnish a transcript of all the evidence so that the defendant might be able to designate and file the parts thereof which it desired to have added to the record. This section provides that if the appellant's designation of the parts of the record to be contained in the record on appeal includes only a part of the reporter's transcript of the evidence, the appellant shall file such additional parts as the appellee may need to enable him to make his designation, and if the appellant fails to do so, the court on motion may order him to furnish such additional parts as are necessary for this purpose.
The plaintiffs filed an opposition to this motion on the ground that the entire transcript of the trial proceedings was not necessary, since the appeal was limited to the points set out in its designation of February 3, 1958. Thereafter a hearing was held and on February 22, 1958, an order was filed wherein it was noted that the plaintiffs desired to withdraw certain points on which they had expected to rely on appeal, and it was ordered that the plaintiffs file an amended statement of these points. Thereafter on February 27, 1958, the plaintiffs filed an amended designation limiting the points on which they intended to rely to the following errors on the part of the trial court; first, in granting the summary judgment of the defendant on the Heaths' claim as to the chicken hatching business; second, in allowing juror Miller to serve on the jury after disclosing his relationship by marriage to a du Pont employee; third, in refusing the requests of the jury to view the plaintiffs' property; and fourth, in refusing to grant a new trial on the basis of the affidavits with regard to the statements of juror Miller on his way to the jury room.
Subsequently the defendant renewed its motion to require the plaintiffs to furnish a transcript of all the evidence on the ground that the Court of Appeals would not be able to determine whether the jury was arbitrary and capricious or whether juror Miller was biased in favor of the defendant unless the record contained a substantial part of the testimony of the witnesses. This motion was submitted to the court without oral argument by agreement and on March 12, 1958 the court ordered that the motion be granted. On the same day the plaintiffs directed the Clerk of the District Court to send to this court the abbreviated record and it was filed on March 20, 1958. In addition to the pleadings and formal record of proceedings, the abbreviated record consists only of the pre-trial depositions of the plaintiffs taken at the instance of the defendant, portions of the transcript of the proceedings at the jury trial relating...
To continue reading
Request your trial
-
Brotherhood of Railroad Train. v. CHICAGO, M., ST. P. & PR CO.
...521. 81 W. M. & A. Transit Co. v. Radecka, 112 U.S.App.D.C. 336, 339-340, 302 F. 2d 921, 924-925 (1962); Gunther v. E. I. Du Pont de Nemours & Co., 255 F.2d 710, 716 (4th Cir. 1958); Lowry v. Seaboard Airline R. Co., 171 F.2d 625, 627 (5th Cir. 82 In Federal Communications Comm. v. WJR, 337......
-
Westinghouse Elec. Supply Co. v. Healy Corp.
...dismiss this appeal on the substantiality of the question (to be) presented on the merits.' 206 F.2d at 482); Gunther v. E. I. duPont deNemours & Co. 255 F.2d 710 (4th Cir. 1958) ('By reason of this provision (the then counterpart of Mass.R.A.P. 3(a), second sentence) the Court of Appeals h......
-
Nichols v. Board of Trustees of Asbestos Workers Local 24 Pension Plan
...States v. Ramos, 413 F.2d 743, 745 (1st Cir.1969); Terkildsen v. Waters, 481 F.2d 201, 206 (2d Cir.1973); Gunther v. E.I. Du Pont De Nemours & Co., 255 F.2d 710, 717 (4th Cir.1958); Higginson v. United States, 384 F.2d 504, 508 (6th Cir.1967), cert. denied, 390 U.S. 947, 88 S.Ct. 1034, 19 L......
-
Moses v. CashCall, Inc., 14–1195.
...Torres v. Oakland Scavenger Co., 487 U.S. 312, 316–17, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988) ); see also Gunther v. E.I. du Pont De Nemours & Co., 255 F.2d 710, 717 (4th Cir.1958) (“When it appears that adequate information is given by the notice, the appeal should not be dismissed for mis......