Indamer Corporation v. Crandon

• Decision Date: 02 December 1954
• Docket Number: No. 14909.,14909.
• Parties: INDAMER CORPORATION, v. C. H. CRANDON, et al.
• Court: U.S. Court of Appeals — Fifth Circuit

217 F.2d 391 (1954)

INDAMER CORPORATION, v. C. H. CRANDON, et al.

No. 14909.

United States Court of Appeals Fifth Circuit.

December 2, 1954.

Leo M. Alpert, Miami, Fla., for appellant.

Frank A. Howard, Jr., H. Reid DeJarnette, Dixon, DeJarnette & Bradford, Miami, Fla., for appellees.

Before BORAH, RIVES and TUTTLE, Circuit Judges.

TUTTLE, Circuit Judge.

This case is before us for the second time. The appellant, in 1948, sued the appellees in addition to a third defendant, Air Transport Maintenance Co., to recover for the destruction by fire of an airplane owned by appellant. At the close of the plaintiff's case on the first trial, the Court directed verdicts for the three defendants. This Court reversed the judgment of the trial court based on the directed verdicts as to the two present appellees, and affirmed as to the third party who is now no longer a party to the litigation. Indamer Corporation v. Crandon, 5 Cir., 196 F.2d 5.

On the second trial the jury returned a verdict for $10,000 for the plaintiff. Plaintiff filed a motion for judgment N. O.V. for $50,000 or, in the alternative, for a partial new trial — for a new trial on the matter of damages alone. This motion was based on the contention that there was no evidence before the jury that could justify a verdict of that size, contending that the only evidence as to value was the opinion evidence of one Rogers to the effect that planes of the type lost by Indamer were selling from $45,000 to $100,000 at the time of the loss; this plane was worth about $75,000, but probably not worth $25,000 in 1950 (the loss was in 1948), and that he "would say the value would be around $50,000," and the fact that the plane had been purchased two weeks previously for $37,000. Plaintiff contended that the only conceivable reason for the jury's awarding such inadequate damages in relation to the proven value of the airplane was that the jury was influenced by an improper statement by the defendants' counsel that the plaintiff had been fully indemnified and had collected $50,000 from London Lloyds Insurance Company; that the plaintiffs "have no interest whatever in the outcome of this lawsuit, and that therefore they are not the proper people to bring this lawsuit."

It will serve no useful purpose to repeat the history of the early efforts made by the defendants to raise the "real party in interest" point and the equally consistent efforts of appellant to eliminate the issue and to put it to rest before the second jury was assembled to try the lawsuit. Suffice it to say, the law of the case was to the effect that on the showing made before the second trial the court had held that there was no merit to defendants' contention that Indamer was not the real party in interest, but the court had kept open to defendants the right to produce additional evidence on the point, the Court having said this was done "on the basis of representations made to the Court by counsel for defendants they had additional evidence on the issue but did not wish to present it at that time." Thus, when the present trial opened and counsel for defendants made the statement complained of, appellant's counsel was in the dilemma that, though he knew the statement was prejudicial to his client, the previous rulings of the Court, prior to the first appeal, had left it open to the defendants to bring forward additional proof on this point. He therefore would not be heard to move for a mistrial, although he did object to the statement, when made.

Subsequently, after the plaintiff's case was closed, the defendants' counsel sought to offer in evidence a deposition by one Adams as to the insurance contract. This was the same evidence that had been held insufficient on the pretrial hearing to establish defendants' contention that plaintiff was not the real party in interest. Defendants, notwithstanding their prior representation to the court that they had additional evidence on the point, produced none. Thereupon, the trial court ruled that this evidence did not sustain the defense as to "real party in interest," a ruling that had been made two years previously, before the first trial. In this posture of affairs the plaintiff's counsel did not then move for a mistrial based on what now became, for the first time, improper remarks of counsel in his opening statement to the jury.

1. We cannot consider defendants' contention that the trial court erred in refusing to enter judgment notwithstanding the verdict, because under the Federal Rules no such motion can be considered unless the moving party has made a timely motion for a directed verdict at the close of all the evidence. Fed. Rules Civ.Proc. rule 50(b), 28 U.S.C.A. No such motion was made here.

2. Ordinarily, of course, this court does not examine the evidence adduced before a trial jury to determine whether it is sufficient to sustain a verdict. This is particularly true when there is substantial conflict in the evidence.¹ The same rule applies, in general, to the reluctance of an appellate court to review the refusal of the trial court to grant a motion for a new trial.²

3. However, the rule is clear that an order denying a motion for a new trial, in a case where the absolute absence of evidence to support the jury's verdict makes such refusal an error in law, is subject to review by the appellate courts. Campbell v. American Foreign S. S. Corp., 2 Cir., 116 F.2d 926, 928. See the comments of the United States Supreme Court in Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 482-484, 53 S.Ct. 252, 77 L.Ed. 439; United States v. Johnson, 327 U.S. 106, 111-112, 66 S.Ct. 464, 90 L.Ed. 562; and Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916.³

4. Where it is evident from the undisputed issues presented by counsel in their briefs in this court that the amount of damages found by the jury clearly bears no relation to the proof submitted, and where it is shown, as here, that the jury has been permitted to hear the improper contention made by the defendants that the plaintiff had already been paid $50,000 by a foreign insurance company and had no interest in this case, we are not prevented from reviewing the action of the trial judge in denying a motion for a partial new trial.

5. The trial court had the power prior to the adoption of the Federal Rules, and now has under the express authority of such Rules, to grant a partial new trial in a proper case. Thorpe v. National City Bank, 5 Cir., 274 F. 200; May Department Stores Co. v. Bell, 8 Cir., 61 F.2d 830; Rule 59(a), F.R.C.P. It would seem that a review of the granting or denial by the trial court of a motion for such partial new trial is logically subject to the same restrictions as on the grant of a completely new trial; i. e., the action of the trial court should not be reversed unless a legal error has been committed, as where there has been no evidence introduced which could support the verdict on the point on which the new trial is sought.

Where the issue as to which a new trial is required is separate from all other issues, and the error requiring a new trial does not affect the determination of any other issue,...