Neely v. Martin Eby Construction Co, 12

• Decision Date: 20 March 1967
• Docket Number: No. 12,12
• Citation: 386 U.S. 317,87 S.Ct. 1072,18 L.Ed.2d 75
• Parties: Sandra Lee NEELY, etc., Petitioner, v. MARTIN K. EBY CONSTRUCTION CO., Inc
• Court: U.S. Supreme Court

386 U.S. 317

87 S.Ct. 1072

18 L.Ed.2d 75

Sandra Lee NEELY, etc., Petitioner,

v MARTIN K. EBY CONSTRUCTION CO., Inc.

No. 12.

Argued Jan. 16 and 17, 1967.

Decided March 20, 1967.

Rehearing Denied April 24, 1967.

See 386 U.S. 1027, 87 S.Ct. 1366.

Kenneth N. Kripke, Denver Colo., for petitioner.

John C. Mott, Denver, Colo., for respondent.

Mr. Justice WHITE delivered the opinion of the Court.

Petitioner brought this diversity action in the United States District Court for the District of Colorado alleg- ing that respondent's negligent construction, maintenance, and supervision of a scaffold platform used in the construction of a missile silo near Elizabeth, Colorado, had proximately caused her father's fatal plunge from the platform during the course of his employment as Night Silo Captain for Sverdrup & Parcel, an engineering firm engaged in the construction of a missile launcher system in the silo. At the close of the petitioner's evidence and again at the close of all the evidence, respondent moved for a directed verdict. The trial judge denied both motions and submitted the case to a jury, which returned a verdict for petitioner for $25,000.

Respondent then moved for judgment notwithstanding the jury's verdict or, in the alternative, for a new trial, in accordance with Rule 50(b), Federal Rules of Civil Procedure.¹ The trial court denied the motions and entered judgment for petitioner on the jury's verdict. Respondent appealed, claiming that its motion for judgment n.o.v. should have been granted. Petitioner, as appellee, urged only that the jury's verdict should be upheld.

The Court of Appeals held that the evidence at trial was insufficient to establish either negligence by respond- ent or proximate cause and reversed the judgment of the District Court 'with instructions to dismiss the action.' Without filing a petition for rehearing in the Court of Appeals, petitioner then sought a writ of certiorari, presenting the question whether the Court of Appeals could, consistent with the 1963 amendments to Rule 50 of the Federal Rules² and with the Seventh Amendment's guarantee of a right to jury trial, direct the trial court to dismiss the action. Our order allowing certiorari directed the parties' attention to whether Rule 50(d) and our decisions in 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; and Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S. 801, 69 S.Ct. 1326, 93 L.Ed. 1704, permit this disposition by a court of appeals despite Rule 50(c)(2), which gives a party whose jury verdict is set aside by a trial court 10 days in which to invoke the trial court's discretion to order a new trial.³ We affirm.

Under Rule 50(b), if a party moves for a directed verdict at the close of the evidence and if the trial judge elects to send the case to the jury, the judge is 'deemed' to have reserved decision on the motion. If the jury returns a contrary verdict, the party may within 10 days move to have judgment entered in accordance with his motion for directed verdict. This procedure is consistent with decisions of this Court rendered prior to the adoption of the Federal Rules in 1938. Compare Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636, with Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, and Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177. And it is settled that Rule 50(b) does not violate the Seventh Amendment's guarantee of a jury trial. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147.

The question here is whether the Court of Appeals, after reversing the denial of a defendant's Rule 50(b) motion for judgment notwithstanding the verdict, may itself order dismissal or direct entry of judgment for defendant. As far as the Seventh Amendment's right to jury trial is concerned, there is no greater restriction on the province of the jury when an appellate court enters judgment n.o.v. than when a trial court does; consequently, there is no constitutional bar to an appellate court granting judgment n.o.v. See Baltimore & Carolina Line, Inc. v. Redman, supra. Likewise, the statutory grant of appellate jurisdiction to the courts of appeals is certainly broad enough to include the power to direct entry of judgment n.o.v. on appeal. Section 2106 of Title 28 provides that,

'The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.'

See Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335.

This brings us to Federal Rules 50(c) and 50(d), which were added to Rule 50 in 1963 to clarify the proper practice under this Rule. Though Rule 50(d) is more pertinent to the facts of this case, it is useful to examine these interrelated provisions together. Rule 50(c) governs the case where a trial court has granted a motion for judgment n.o.v. Rule 50(c)(1) explains that, if the verdict loser has joined a motion for new trial with his motion for judgment n.o.v., the trial judge should rule conditionally on the new trial motion when he grants judgment n.o.v. If he conditionally grants a new trial, and if the court of appeals reverses his grant of judgment n.o.v., Rule 50(c) (1) provides that 'the new trial shall proceed unless the appellate court has otherwise ordered.' On the other hand, if the trial judge conditionally denies the motion for new trial, and if his grant of judgment n.o.v. is reversed on appeal, 'subsequent proceedings shall be in accordance with the order of the appellate court.' As the Advisory Committee's Note to Rule 50(c) makes clear, Rule 50(c)(1) contemplates that the appellate court will review on appeal both the grant of judgment n.o.v. and, if necesary, the trial court's conditional disposition of the motion for new trial.⁴ This review necessarily includes the power to grant or to deny a new trial in appropriate cases.

Rule 50(d) is applicable to cases such as this one where the trial court has denied a motion for judgment n.o.v. Rule 50(d) expressly preserves to the party who prevailed in the district court the right to urge that the court of appeals grant a new trial should the jury's verdict be set aside on appeal. Rule 50(d) also emphasizes that 'nothing in this rule precludes' the court of appeals 'from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.' Quite properly, this Rule recognizes that the appellate court may prefer that the trial judge pass first upon the appel- lee's new trial suggestion. Nevertheless, consideration of the new trial question 'in the first instance' is lodged with the court of appeals. And Rule 50(d) is permissive in the nature of its direction to the court of appeals: as in Rule 50(c)(1), there is nothing in Rule 50(d) indicating that the court of appeals may not direct entry of judgment n.o.v. in appropriate cases.

Rule 50(c)(2), n. 2, supra, is on its face inapplicable to the situation presented here. That Rule regulates the verdict winner's opportunity to move for a new trial if the trial court has granted a Rule 50(b) motion for judgment n.o.v. In this case, the trial court denied judgment n.o.v. and respondent appealed. Jurisdiction over the case then passed to the Court of Appeals, and petitioner's right to seek a new trial in the trial court after her jury verdict was set aside became dependent upon the disposition by the Court of Appeals under Rule 50(d).

As the Advisory Committee explained, these 1963 amendments were not intended to 'alter the effects of a jury verdict or the scope of appellate review,' as articulated in the prior decisions of this Court. 31 F.R.D. 645. In Cone v. West Virginia Pulp & Paper Co., supra, the defendant moved for a directed verdict, but the trial judge sent the case to the jury. After a jury verdict for the plaintiff, the trial court denied defendant's motion for a new trial. On appeal, the Court of Appeals reversed and ordered the entry of judgment n.o.v. This Court reversed the Court of Appeals on the ground that the defendant had not moved for judgment n.o.v. in the trial court, but only for a new trial, and consequently the Court of Appeals was precluded from directing any disposition other than a new trial. See also Globe Liquor Co. v. San Roman, supra. In Johnson v. New York, N.H. & H.R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77, this Court held that a verdict loser's motion to 'set aside' the jury's verdict did not comply with Rule 50(b)'s requirement of a timely motion for judgment n.o.v. and therefore that the Court of Appeals could not direct entry of judgment n.o.v. And in Weade v. Dichmann, Wright & Pugh, Inc., supra, where a proper motion for judgment n.o.v. was made and denied in the trial court, we modified a Court of Appeals decision directing entry of judgment n.o.v. because there were 'suggestions in the complaint and evidence' of an alternative theory of liability which had not been passed upon by the jury and therefore which might justify the grant of a new trial. 337 U.S., at 808—809, 69 S.Ct., at 1330.

The opinions in the above cases make it clear that an appellate court may not order judgment n.o.v. where the verdict loser has failed strictly to comply with the procedural requirements of Rule 5(b), or where the record reveals a new trial issue which has not been resolved. Part of the Court's concern has been to protect the rights of the party whose jury verdict has been set aside on appeal and who may have valid grounds for a new trial, some or all of which should be...