Marshall's US Auto Supply v. Cashman, 1983.

• Decision Date: 09 May 1940
• Docket Number: No. 1983.,1983.
• Citation: 111 F.2d 140
• Parties: MARSHALL'S U. S. AUTO SUPPLY, Inc., v. CASHMAN.
• Court: U.S. Court of Appeals — Tenth Circuit

111 F.2d 140 (1940)

MARSHALL'S U. S. AUTO SUPPLY, Inc., v. CASHMAN.

No. 1983.

Circuit Court of Appeals, Tenth Circuit.

April 1, 1940.

Rehearing Denied May 9, 1940.

Barton E. Griffith, of Topeka, Kan. (Ralph T. O'Neil and John D. M. Hamilton, both of Topeka, Kan., on the brief), for appellant.

Charles Rooney and Roy N. McCue, both of Topeka, Kan., for appellee.

Before BRATTON and HUXMAN, Circuit Judges, and VAUGHT, District Judge.

BRATTON, Circuit Judge.

This is a suit to recover damages for personal injuries. Reference will be made to the parties as they appeared in the court below. Plaintiff purchased from defendant at its store in Topeka, Kansas, a tire for his automobile. Defendant maintained a continuing arrangement with a nearby garage under which for an agreed fee to be paid by defendant the garage mounted tires sold by defendant on the automobiles of the purchasers when the employees in the store were too busy to do so themselves. On the occasion in question the manager of the store requested the manager of the garage to mount the tire on the automobile of plaintiff, and an employee of the garage did so. The automobile was old, some of the cogs were broken from the flywheel, the self-starter would not function, and in consequence it was necessary to crank the motor by hand. Soon after the tire had been mounted, plaintiff cranked the motor, the engine was in gear, the car sprung forward, plaintiff was pinned between the front of the car and a brick wall, and he sustained serious injuries. The two major issues joined on the pleadings and presented by the evidence were whether in connection with the mounting of the tire the employee of the garage was an agent of defendant or an independent contractor, and whether he carelessly and negligently left the car in gear after mounting the tire, and told plaintiff that it was ready to be cranked and handed him the crank for that purpose, well knowing that the car was in gear.

The case was tried twice to a jury. The first jury returned a verdict for defendant, and judgment was entered upon it. On the tenth day after the entry of the judgment plaintiff served upon defendant an unverified motion for new trial containing four grounds in the following language: "1. Newly discovered evidence which is material and which plaintiff and his counsel, with due diligence, were unable to produce at the trial. 2. Mistake and prejudice on the part of the jurors. 3. The court inadvertently failed to fully and properly instruct the jury as to the law applicable in the case. 4. The verdict was secured by false testimony offered by the defendant."

The motion came on for hearing about ninety days after it was served. On the day of the hearing plaintiff filed a supporting affidavit in which the affiant stated that on the afternoon of the accident, sometime past mid-afternoon, and in the best judgment of the affiant about four o'clock, plaintiff came to the place of business of the affiant in Topeka, remained there some considerable time, transacted some business, and then departed. The affidavit, but nothing else in the nature of supporting evidence, was offered upon the hearing. The court entered an order sustaining the motion and granting a new trial on all of the grounds stated in such motion, and on the further ground that the court was not satisfied with the verdict.

The second trial resulted in a verdict for plaintiff. Judgment was entered upon it, from which defendant appealed.

The action of the court in setting aside the first verdict and judgment and granting a new trial is challenged for abuse of discretion. It is an inveterate rule of wide recognition that a motion for new trial is addressed to the sound judicial discretion of the trial court, and ordinarily an appellate court will not review the action thereon for error of fact. That rule has application in cases where the basis of the motion is excessive or inadequate damages. Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S.Ct. 252, 77 L. Ed. 439; Chambers v. Skelly Oil Co., 10 Cir., 87 F.2d 853. An order granting or denying a new trial is not an appealable order. Hunt v. United States, 10 Cir., 53 F.2d 333. But on appeal from a final judgment subsequently entered the ruling may be assigned as error on the ground that the court abused its discretion. Southern Pacific Co. v. Klinge, 10 Cir., 65 F.2d 85, certiorari denied, 290 U.S. 657, 54 S.Ct. 72, 78 L.Ed. 569; Pettingill v. Fuller, 2 Cir., 107 F.2d 933, certiorari denied, 60 S.Ct. 609, 84 L.Ed. ___. And where a motion to set aside a verdict in favor of one party and to allow a new trial is granted through abuse of discretion, and on the second trial a verdict is returned and judgment rendered for the opposite party on appeal the second...