Marine Towing Company v. Fairbanks, Morse & Co.
Decision Date | 03 June 1963 |
Docket Number | Civ. A. No. 22565. |
Citation | 225 F. Supp. 467 |
Parties | MARINE TOWING COMPANY, Inc. v. FAIRBANKS, MORSE & CO. |
Court | U.S. District Court — Eastern District of Pennsylvania |
George E. Beechwood, Philadelphia, Pa., for plaintiff.
Francis Hopkinson, Philadelphia, Pa., for defendant.
This case, based on the alleged breach of an implied warranty made in June 1955 to repair a tug boat engine in a skilled and workmanlike, manner, is before the court on (a) the plaintiff's Motion For New Trial (Document 46) filed after a jury verdict1 for defendant on the issue of liability, and (b) the motions of both parties for a directed verdict made at the conclusion of all the evidence, on which motions judgment was reserved (N.T. 1359-60).
The jury may well have accepted evidence justifying the finding of these facts, as recited in defendant's brief at pp. 1-3 (Document 51):
Under the facts in this record, the trial judge is not permitted to substitute his evaluation of the evidence for that of the jury, even if he disagrees with the jury's verdict. See Lind v. Schenley Industries, Inc., 278 F.2d 79 (3rd Cir.1960).
A qualified expert such as Anderson is entitled to give his opinion on the ability of persons working under his supervision to repair an engine such as the one on "The Boyer."2
As stated in VII Wigmore, Evidence (3rd Ed.), at pp. 155-6: "Testimony to professional skill, concerning either party or witness, when furnished by professional persons qualified to know, is also generally regarded as receivable." See, also, Mulhollen Appeal, 155 Pa.Super. 587, 595, 39 A.2d 283 (1944), quoting the above text. In Laros v. Commonwealth, 84 Pa. 200 at page 209 (1877), the Supreme Court of Pennsylvania said:
"If I have seen a workman doing his work frequently, and know his skill myself, surely, if I am myself a judge of such work, I can testify to his skill."
See, also, other authorities cited at pp. 5-6 of defendant's brief (Document 51). It is noted that Anderson did not express an opinion on the work of any of the employees of defendant in the language of question 1 as submitted to the jury. For example, the opinion of Rabuse's work (N.T. 1231) complained of at p. 14 of plaintiff's brief (Document 50) was worded:
The cases relied on at page 15 of plaintiff's brief are inapposite because in those cases the experts' opinions were upon the ultimate issue to be decided by the jury. For this reason, the statement in United States v. Spaulding, 293 U.S. 498 at page 506, 55 S.Ct. 273 at pages 276-277, 79 L.Ed. 617 (1935), relied on by plaintiff, is inapplicable. The trial judge made clear that the jury was free to disregard completely the testimony of any expert so that the jury could not have thought they were bound to follow the opinion of an expert on any issue. The charge contained this language at N.T. 1415-6:
The first statement in the jury's presence4 concerning delaying or prolonging the case was unnecessarily injected into the record by counsel for plaintiff at N.T. 125, as follows:
"I would ask for the withdrawal of a juror on the last testimony of the witness, not only because it completely went beyond any scope of direct examination, but because it is based upon matters which he is assuming, based upon situations in which he was not there, and further based upon the fact that these statements now are going to prolong this case probably three to four more days in bringing in —"
In view of this statement, the plaintiff cannot complain of later statements by the court, pointing out delays caused by plaintiff's counsel, in an effort to expedite a trial which took approximately twice as long as had been estimated by the pretrial judge (see paragraph 11 of pre-trial report (Document 23), estimating a trial time of 5-6 days). The accounting personnel of plaintiff5 had failed to prepare clear summaries of plaintiff's financial records and had to be directed to prepare such summaries during the trial (N.T. 654-8, 668, 686-8, 717-9, 772, 780-1, 784, 869 ff., 894-911 & 914). Also, financial documents sought were not available when requested (e. g., N.T. 896) and all these factors, among others, contributed to prolonging the trial prior to the remarks at N.T. 1050-4 quoted at page 18 of plaintiff's brief.6
The trial judge made this statement to the jury during the trial and before the conclusion of the evidence7 (N.T. 1071-3):
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