McKeon v. Central Stamping Co.

• Decision Date: 07 June 1920
• Docket Number: 2537.
• Citation: 264 F. 385
• Parties: McKEON v. CENTRAL STAMPING CO.
• Court: U.S. Court of Appeals — Third Circuit

264 F. 385

McKEON v. CENTRAL STAMPING CO.

No. 2537.

United States Court of Appeals, Third Circuit.

June 7, 1920

Samuel Kalish, Jr. (of Kalish & Kalish), of Newark, N.J., for plaintiff in error.

John W Palmer, of Newark, N.J., for defendant in error.

Before BUFFINGTON and WOOLLEY, Circuit Judges, and MORRIS, District judge.

BUFFINGTON Circuit Judge.

In the court below, Matthew J. McKeon, by Patrick McKeon, his father and next friend, citizens of New Jersey, brought suit against the Central Stamping Company, a corporate citizen of New York. The cause of action was personal injury suffered by the minor plaintiff through the alleged negligence of the defendant's employes. A trial of the cause resulted in a verdict for the plaintiff. On motion by the plaintiff for a new trial, the trial judge was of opinion the trial had been without error, other than that the damages assessed were not equal to the injury sustained. Instead, however, of following the usual course in such cases, of granting a new trial in which the whole case would be retried, the judge granted a restricted trial, wherein the sole issue to be determined was the amount of damages sustained by the infant plaintiff. On such new trial the defendant sought and offered to prove its entire defense to the plaintiff's motion; but the judge declined to receive such testimony, and instructed the jury that the sole issue before them was the amount of damage suffered by the plaintiff. A verdict on this restricted issue having been rendered, and judgment entered thereon, the defendant took this writ of error, and the question before us is whether the defendant has been denied that federal constitutional right that--

'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.'

The question thus raised is basic in character. Such divided verdict, namely, one where 24 men have, in two separate juries of 12 each, passed on parts of the issues on which the judgment rests, and where neither the 24 collectively and neither of the 12 singly have passed on all the issues which support the judgment, constitutes such a departure from the unvarying trial course followed in our federal courts that in the absence of any opinion on the record by the trial judge warranting such a course, it becomes the imperative duty of this tribunal to justify, or by judicial opinion and judicial decree forbid, a departure from the course of trial that has obtained in historic continuity in the courts of the United States from the foundation of the government.

Turning then, to the briefs of counsel for the alleged grounds of justification for this course of procedure, we find that the state of New Jersey, the territorial limits of which state constitute the federal district wherein this cause was tried, by its practice act of 1912 (P.L. 1912, p. 397, Sec. 73) enacted that--

'When a new trial is ordered because the damages are excessive or inadequate, and for no other reason, the verdict shall be set aside only in respect of damages, and shall stand good in all other respects.'

It is therefore contended that by virtue of R.S. Sec. 721 (Comp. St. Sec. 1538), which provides: 'The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply'-- and in conformity with R.S. Sec. 914 (Comp. St. Sec. 1537), which provides: 'The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such Circuit or District Courts are held, any rule of court to the contrary notwithstanding'-- the court below was justified and indeed constrained to follow the statute of New Jersey.

Assuming for present purposes that such statute of New Jersey is a constitutional law of that state, but noting, however, that in disposing of the case of Oppicci v. Erie Railroad Company, 108 A. 759, that court saw fit to state that by such disposition 'the question of the constitutionality of ordering a new trial as to damages alone will not then be presented, and we ought not to decide it now,' it would seem the case before us involves two federal questions: First, was the action of the court below in following the New Jersey statute warranted by the federal statutes above cited? And, secondly, if not so, was the restricted jury trial in the court below one which deprived the defendant of its constitutional rights that 'the right of trial by jury shall be preserved'?

What do these few simple words, used in the Constitution, 'the right of trial by jury shall be preserved,' mean? Manifestly, in answering that question, we naturally ask: What did these words mean to those who used them when they were written into the Constitution? Now, in construing those words, one basic fact challenges our attention, namely, that there was something that was then preserved, for preservation implies the continuance of what previously existed. Preservation is not creation; it is the saving that which already exists. Seeing, then, we have here a word which implies the existence of something already in being, we find the call of the words 'preserved,' 'shall be preserved,' answered by a definite thing, to wit, 'the right of trial by jury. ' And it will be noted that we are not dealing with an indefinite, but a very definite, concrete, well-understood thing, that at that time had such a recognized meaning that it was described, not as 'a right of trial by jury,' not as some or any right of trial by jury, but as 'the right of trial by jury.'

What, then, was 'the right of trial by jury' which was in the minds of the makers of the Constitution? Light is thrown on this by the fact that, in our Declaration of Independence from Great Britain, we find that among the 27 charges made against 'the present king of Great Britain' personally, the eighteenth was 'for depriving us in many cases of trial by jury,' and we called the attention, as set forth in the Declaration, of 'our British brethren' to 'the circumstances of our immigration and settlement here,' and we then and there 'conjured them by the ties of our common kindred' to disavow these usurpations. From this it is quite evident historically that the trial by jury of which King George had deprived us was the trial by jury to which as British colonists and subjects we were then entitled, and which our then fellow British subjects were conjured to disavow as personal usurpations by that arbitrary monarch, and, upon which disavowal of the king's action not being made by the people of Great Britain, we based our justification for seceding from that kingdom.

Having, then, assigned denial of the right of trial by jury as one of the causes and justifications for declaring our independence, and although such trial by jury was preserved in criminal cases by the Constitution itself, yet the omission to preserve it also in civil cases was made one of the strong arguments against adoption of the Constitution; indeed, its adoption was only secured on the implied understanding that it, with other omitted provisions, would be embodied in those amendments, which were at once passed. These historic facts are referred to by the Supreme Court in Parsons v. Bedford, 28 U.S. (3 Pet.) 445, 7 L.Ed. 732, where Mr. Justice Story says:

'The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. * * * One of the strongest objections originally taken against the Constitution of the United States was the want of an express provision securing the right of trial by jury in civil cases. As soon as the Constitution was adopted, this right was secured by the Seventh Amendment of the Constitution proposed by Congress, and which received an assent of the people so general as to establish its importance as a fundamental guaranty of the rights and liberties of the people.'

Addressing ourselves, then, to the question of what was this trial by jury as then fixed by the common law of Great Britain, it will be seen that the jury of the common law of England consisted of 12 men, ^[1] that it heard all the evidence pertinent to the issue raised by the pleadings, ^[2] it returned a single verdict, ^[3] and upon such verdict judgment was entered, ^[4] and if a new trial is granted it is a trial of the whole case. ^[5] Such was the trial by jury as stated in the Commentaries of Blackstone in 1758, and which in the intervening years before the Declaration of Independence had become familiar to the colonial lawyers, from whose number so many of those who framed the Constitution were drawn, for of the 39 men who signed the Constitution 24 were lawyers, some of whom had gone overseas and obtained their legal training in the London Inns of Court. As students of the English common law, they knew, in common with legal statesmen, such as Blackstone, what the 'trial by jury' was, and it was that trial by jury they wrote into the Constitution of the new nation that it 'shall be preserved.' They knew it had stood the test of time and use on the other side of the sea, and they recognized the...