Jackson v. Wilson Trucking Corp.

• Decision Date: 21 February 1957
• Docket Number: No. 13359.,13359.
• Parties: Charles JACKSON, Appellant, v. WILSON TRUCKING CORP., a Corporation, and Roy S. Rexrode, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

100 US App. DC 106, 243 F.2d 212 (1957)

Charles JACKSON, Appellant, v. WILSON TRUCKING CORP., a Corporation, and Roy S. Rexrode, Appellees.

No. 13359.

United States Court of Appeals District of Columbia Circuit.

Argued November 15, 1956.

Decided February 21, 1957.

Mr. Hyman Smollar, Washington, D. C., for appellant.

Mr. Frank F. Roberson, Washington, D. C., for appellees. Mr. William J. Curtin, Washington, D. C., also entered an appearance for appellees.

Before FAHY, DANAHER and BURGER, Circuit Judges.

FAHY, Circuit Judge.

In an action for personal injuries suffered as a pedestrian when struck by an automobile, plaintiff in the District Court, appellant here, obtained a monetary jury verdict against defendants, appellees. Upon this verdict judgment was entered for plaintiff. Defendants filed a timely motion for judgment notwithstanding the verdict, pursuant to Rule 50(b), Fed.Rules Civ. Proc., 28 U.S.C.A. This motion was not accompanied by a motion or prayer for a new trial as permitted by the Rule.¹ The District Judge some weeks later denied defendants' motion for judgment but set aside the verdict and judgment in favor of plaintiff and ordered a new trial. In explanation the Judge stated in open court:

"* * * I do not think the state of the evidence is such that I can properly grant the motion of defendants for judgment notwithstanding the verdict. But I do feel that the greater weight of the evidence is contrary to the verdict of the jury, and that in all fairness and justice, a new trial shall sic be granted. Inasmuch as the motion that was filed was timely, I feel that I have a discretion to grant the lesser remedy instead of the greater one."

Plaintiff moved to set aside the order granting a new trial, on the ground essentially that the Court was without jurisdiction to enter it since no timely motion therefor had been filed and the Court had not on its own initiative ordered the new trial within 10 days from entry of the judgment. Rule 59(b) and Rule 59(d), Fed.Rules Civ.Proc., were relied upon.² The appeal is from the Court's order denying this motion and also from the earlier order awarding defendants a new trial.³

When a trial court concludes that a proper basis exists for granting a timely, well-grounded motion for judgment n. o. v., it has a discretion to grant the lesser relief and to order a new trial instead if justice would thereby better be served.⁴ This is so even though no motion for a new trial has been filed, and even though 10 days have elapsed since the entry of judgment. This discretion to grant the lesser relief, however, comes into being only when the record is such that the entry of judgment n. o. v. would be warranted. The court may then give the party against whom judgment n. o. v. could be entered another opportunity to supply those defects in the record which would warrant the harsher remedy of an adverse final judgment.

"* * * the court does not have to grant the motion for judgment notwithstanding verdict, even though he thinks the original motion for a directed verdict should have been granted. This rule particularly provides that he may grant a new trial where justice would be served by it; where, for instance, it is obvious that the defect in the proof of one side or the other is a thing that may be remedied at a new trial without perjury." Statement of Mr. William D. Mitchell, Chairman of the Advisory Committee which drafted the Rules, Proceedings of the Symposium at New York City on the Federal Rules, p. 283-4 (1938).

This clearly refers to a situation where the motion for judgment n. o. v. could be granted.⁵ To the same effect see note in Report of Proposed Amendments to the Rules, 1946 U.S.Code Cong.Serv. pp. 2315, 2352, 79th Cong., 2d Sess.

An entirely different situation pertains when a verdict could not have been directed; that is, when the motion for judgment n. o. v., though timely, cannot be granted. Rule 59(b) and Rule 59 (d), note 2 supra, then govern. Subparagraph (b) requires a motion for a new trial to be served not later than 10 days after the entry of judgment. Subparagraph (d) permits the court of its own initiative to order a new trial only within 10 days after the entry of judgment. In the case at bar, as we have seen, the Court decided that the state of the evidence did not allow him to grant the motion for judgment n. o. v. filed under Rule 50(b). No motion for a new trial had been filed by defendants and 10 days since the entry of judgment had long since elapsed. The factors essential to the exercise of power to order a new trial accordingly did not exist.

This construction of the Rules we think is sustained not only by the terms and intendment of Rule 50(b) when construed in the light of Rule 59(b) and Rule 59(d), but also by the decision of this Court in Freid v. McGrath, 76 U.S. App.D.C. 388, 133 F.2d 350.⁶ Cf. Bailey v. Slentz, 10 Cir., 189 F.2d 406, and Kanatser v. Chrysler Corp., 10 Cir., 199 F.2d 610, certiorari denied, 344 U.S. 921, 73 S.Ct. 388, 97 L.Ed. 710.

The precise question has not been decided by the Supreme Court, but the Supreme Court has considered Rule 50(b) in several cases. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849; Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177; Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971; Johnson v. New York, New Haven & Hartford R. Co., 344 U.S. 48, 73 S.Ct. 125, 126, 97 L.Ed. 77. In the Johnson case, the Court said:

"On several recent occasions we have considered Rule 50(b). We have said that in the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of a verdict the rule forbids the trial judge or an appellate court to enter such a judgment."

These cases do not solve our problem, but none of them militates against the solution we reach, and at least they demonstrate that unless a motion for the greater remedy, for judgment n. o. v., is timely filed it may not be granted even though a motion for a new trial has been timely filed. While it does not necessarily follow from the Supreme Court decisions that the lesser remedy may not be granted in the converse situation, we think this does follow from the necessity of giving efficacy to Rule 59(b) and Rule 59(d). They would be largely nullified were it to be held that an ill-founded, though timely, motion for judgment n. o. v. under Rule 50(b) must be deemed either to include a motion for a new trial though none be actually filed, or to hold open for more than 10 days the authority of the court under Rule 59(d) to grant a new trial on its own initiative. When the trial judge in the present case found himself unable to grant the motion for judgment there was no request for a new trial before him and the time within which he could order a new trial on his own initiative had long since expired. Accordingly he was without authority to order a new trial.⁷

In deference to the views of Judge Burger in dissent we have reconsidered our position above set forth and are constrained to adhere to it. Judge Burger in effect says that Rule 50(b) in all cases means that a motion for judgment n. o. v. shall be deemed to include a motion for a new trial and that the judge may grant one or the other. If that were correct, the rule would not have needed the sentence: "A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative." He sees formalism in our application of the Rules, a failure to give effect to their aim and spirit to "secure the just, speedy, and inexpensive determination of every action." Rule 1, Fed.Rules Civ.Proc. Moreover, he suggests that we do not recognize the full responsibility of the trial court in the judicial dispensation of justice. Rather, we think our position reflects the importance which should be ascribed to a valid verdict of a jury. This was a jury case. The role a jury plays in the dispensation of justice in a trial court is not only not insignificant, but in such a case as this is usually controlling both in the trial court and on appeal. The trial judge here concluded that the verdict for the plaintiff was supported by the evidence, and he could neither direct a verdict nor order judgment for the defendants. Moreover, there is no suggestion of any trial error which impaired the verdict. In this situation the spirit of the Rules, as well as their language, says that the judgment entered on the verdict should end the matter, except under certain specified conditions. We have spelled out those conditions, as contained in Rules 50(b), 59(b) and 59(d). None of the provisions of these Rules relating explicitly to a new trial was either complied with or invoked. The explicit provisions of Rules 59(b) and 59(d) prevent us from implying a power inconsistent with them. Implication sometimes is justified in the absence of explicitness, but not when contrary thereto. In any event an implied power to grant a new trial is not justified in this case, where the full force of the Rules combines in both spirit and form to the end that the valid verdict of the jury upon which judgment has been entered should stand. Where, on the other hand, a verdict is not valid; that is, where it is vulnerable to a timely motion for judgment n. o. v., then the trial court, in the exercise of a just discretion, may permit the party in favor of whom the jury has awarded its verdict to try his case again rather than to suffer an immediate and final adverse judgment at the hands of the trial judge. This discretionary power conflicts with no Rule. It accords with the purpose of the Rules to obtain a just determination. But this is quite different from authority to set aside a valid jury verdict in the discretion of the trial judge when the discretion is not exercised within the time and on the...