Mill Owners Mut. Fire Ins. Co. v. Kelly, 12748.

• Decision Date: 07 April 1944
• Docket Number: No. 12748.,12748.
• Citation: 141 F.2d 763
• Parties: MILL OWNERS MUT. FIRE INS. CO. v. KELLY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

141 F.2d 763 (1944)

MILL OWNERS MUT. FIRE INS. CO. v. KELLY et al.

No. 12748.

Circuit Court of Appeals, Eighth Circuit.

April 7, 1944.

John W. Hudson, of Kansas City, Mo. (S. L. Trusty, of Kansas City, Mo., on the brief), for appellant.

Walter J. Gresham, of Parkville, Mo., for appellees Joseph G. and Elizabeth Kelly.

James Daleo, of Kansas City, Mo., for appellee Tony Fatell.

Before SANBORN, THOMAS, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

The appellant, plaintiff in the District Court, seeks a reversal of a judgment for the defendants (appellees) on the grounds that the court erred in directing a verdict for the defendant Tony Fatell (whose true name is shown by the record to be George W. Fatall) and erred in its instructions to the jury.

The action is one to recover $36,852.14, the amount of a fire loss sustained by the Consumers Cooperative Association on October 31, 1942. The Association was a tenant of the defendants Kelly, and had a large stock of merchandise stored in a building belonging to them in North Kansas City, Missouri. On the evening of October 31, 1942, a fire occurred in the building. The plaintiff and four other fire insurance companies had insured the merchandise of the Association against loss by fire, and they paid the Association $36,852.14, the amount of its fire loss, and became subrogated to its rights. The plaintiff took assignments from the other fire insurance companies of their rights, and brought this action against the defendants upon the claim that the fire was caused by their negligence in erecting, maintaining and operating a coal stove and stovepipe connections in a room in the building, which room was leased from the defendants Kelly by the defendant Fatell. The defendants denied that they were negligent and denied that the fire was caused by the stove or the stovepipes. The case was tried to a jury. At the close of the evidence, each defendant moved for a directed verdict. The court directed a verdict for the defendant Fatell. The jury returned a verdict in favor of the defendants Kelly. Judgment was entered on the verdicts, and this appeal followed.

It seems advisable first to determine which of the alleged errors of the trial court are subject to review by this court. The "Statement of Points to be Relied Upon" in the appellant's brief reads as follows:

"A. The court erred in sustaining the demurrer motion for a directed verdict of defendant Tony Fatall (R. 214).

"B. The court erred in its charge or instructions to the jury in giving what it termed to be the 5th, 6th and 6A instructions (R. 217, 218, 219).

"C. The court further erred in its supplemental charge or instructions to the jury on June 17, 1943, at 11:40 a.m. (R. 224).

"D. The court erred in not instructing the jury that the defendants were under a duty imposed by law to comply with the statutes and the ordinances and that the violation of that duty resulting in an injury to plaintiff would be negligence as a matter of law.

"E. The court further erred in its supplemental charge or instructions to the jury on June 17, 1943, at 3:05 p.m. (R. 227).

"F. The court erred in overruling plaintiff's motion for a new trial.

"G. The verdict of the jury is contrary to the law and the evidence and against the weight of the evidence.

"H. The verdict of the jury was predicated on and the result of erroneous instructions and directions given by the court to the jury."

The last three points present nothing for review. Under the Federal practice, a motion for a new trial, such as that made by the plaintiff, is addressed to the discretion of the trial court, and its action thereon is not reviewable. Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 436, and cases cited; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 247, 248, 60 S.Ct. 811, 84 L. Ed. 1129. Points "G" and "H" are too general to bring up any question for review, since they challenge no specific action or ruling of the trial court. Ayers v. United States, 8 Cir., 58 F.2d 607, 608; State of Minnesota v. United States, 8 Cir., 125 F.2d 636, 638; Humphreys Gold Corporation v. Lewis, 9 Cir., 90 F.2d 896, 898, 899.

The Fourth subdivision of Rule 11(b) of the Rules of this court, requiring that a brief shall contain a particular statement of each point relied upon, provides:

"If an error assigned or point relied upon relates to the giving of instructions or the refusal to give instructions requested, the statement shall quote the portions of the instructions or of the requested instructions which are referred to, the exceptions taken to the giving of the instructions or the refusal to give requested instructions and the rulings of the court thereon, and shall give the pages of the printed record on which the quotations appear."

It is apparent that in its statement of points relating to the giving or the failure to give instructions, the appellant has not complied with this rule in that it has not quoted the instructions referred to, the exceptions taken, and the rulings of the court thereon. A statement of points which conforms to the rule enables this court to determine, without searching the record or the body of the brief, which of the instructions complained of, if any, are subject to review upon appeal. We think that the rule is reasonable and fair and that substantial compliance with it should be insisted upon. A statement of points relied upon which is violative of the rule presents no question which this Court is required to review. Butler v. United States, 8 Cir., 108 F.2d 27, 28.

We have, nevertheless, examined the instructions challenged by the plaintiff, and find that no adequate objections or exceptions were made or taken by it to any of them. Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that "no party may assign as error the giving or the failure to give an instruction unless he objects thereto * * *, stating distinctly the matter to which he objects and the grounds of his objection." This rule has the force of law and is, in substance, the rule which has always prevailed in the Federal courts. In Hall v. Ætna Life Insurance Co., 8 Cir., 85 F.2d 447, 450, this Court said: "The general rule is that alleged error in instructing a jury, either in the giving of erroneous instructions or refusing to give requested instructions, will not be reviewed in the absence of specific exceptions pointing out wherein the instructions given are erroneous." The Supreme Court of the United States, in Pennsylvania R. Co. v. Minds, 250 U.S. 368, 375, 39 S.Ct. 531, 533, 63 L.Ed. 1039, said: "Parties may not rest content with the procedure of a trial, saving general exceptions to be made the basis of error proceedings, when they might have had all they were entitled to by the action of the trial court had its attention been seasonably called to the matter." In Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 483, 87 L.Ed. 645, 144 A.L.R. 719, the Supreme Court said: "In fairness to the trial court and to the parties, objections to a charge must be sufficiently specific to bring into focus the precise nature of the alleged error. Where a party might have obtained the correct charge by specifically calling the attention of the trial court to the error and where part of the charge was correct, he may not through a general exception obtain a new trial."

The plaintiff made no written requests for instructions, and the only objection, exception or request relating to any portion of the court's charge was:

"Now, as to this part about somebody going in after the fire — I mean after Mr. Fatall says...