Novick v. Gouldsberry

• Citation: 173 F.2d 496
• Decision Date: 11 March 1949
• Docket Number: No. 11869.,11869.
• Parties: NOVICK et al. v. GOULDSBERRY.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

173 F.2d 496 (1949)

NOVICK et al. v. GOULDSBERRY.

No. 11869.

United States Court of Appeals Ninth Circuit.

March 11, 1949.

Seward R. E. Baumgartner and George B. Grigsby, both of Anchorage, Alaska (E. Coke Hill, of San Francisco, Cal., of counsel), for appellants.

Edward V. Davis, William W. Renfrew and Davis & Renfrew, all of Anchorage, Alaska, for appellee.

Before BONE and ORR, Circuit Judges, and YANKWICH, District Judge.

YANKWICH, District Judge.

On December 20, 1946, Appellee, Anson E. Gouldsberry, plaintiff below, filed an action in the District Court for the Territory of Alaska, Third Division, against four defendants, William H. Novick, Annetta Novick, William Carroll and Lucille Carroll. The Novicks, who are the appellants here, are the owners and operators of a bar at Seward, Alaska, known as "Novick's Cocktail Lounge." William Carroll was the bartender. On July 5, 1946, Gouldsberry, according to his complaint, was assaulted by the Carrolls and Annetta Novick. As a result of his injuries, he was unable to work for about six months, except at odd jobs. He suffered cuts and a broken ankle and pain and ill-effect from the injuries, and, at the time of trial, his ankle was still giving him trouble. He sought compensatory damages in the sum of $15,000, punitive damages in the sum of $5,000, and special damages, in the form of loss of wages, $2,250, and medical expenses, $87.

A joint answer, filed by all the defendants, admitted Carroll's employment, but denied liability, asserting that the plaintiff provoked the disturbance, and that the three defendants present were compelled to defend themselves. The cause was tried to a jury, which, on March 27, 1947, returned a verdict in favor of the plaintiff, against all the defendants, for $2500 compensatory damages and $1,000 punitive damages. A motion for a new trial was made and denied, but none of the pleadings relating to it appear in the Transcript of Record.

This is an appeal from the judgment entered upon the verdict, which is prosecuted only by appellants William H. Novick and Annetta Novick. 28 U.S.C.A. § 1291.

I The Facts in Summary

As was to be expected in a case of this character, the participants and the witnesses are not in agreement as to the nature of the brawl which took place in the Cocktail Lounge and of the circumstances which led to it.

The version of the appellee, which the Jury evidently believed, may be summarized briefly as follows:

Gouldsberry walked into the bar and ordered beer. Carroll was the bartender in charge. Carroll's wife, who had been but recently divorced from Gouldsberry, was sitting at one end of the bar. Gouldsberry was not expecting any difficulties that evening. For he had taken along his small dog and had left his supper cooking in his home. When he entered the bar, he congratulated Carroll on his marriage, and offered to buy him and Mrs. Carroll drinks. A conversation ensued between Gouldsberry and Mrs. Carroll, during the course of which Mrs. Carroll said that people were "telling lies about her." After a little more talk, Gouldsberry told Mrs. Carroll: "Well, I don't suppose you bought another man a bathrobe and I had to pay for it." Carroll then struck Gouldsberry in the face with a bottle, knocking him to the floor. Gouldsberry was knocked partially unconscious. A scuffle ensued, with Gouldsberry on the floor. Mrs. Novick had been sitting at the bar. She and Mrs. Carroll and another person, Gouldsberry testified, were "hammering" on him when he was on the floor. He was not certain, however, whether Mrs. Novick struck and beat him. Nor did he know whether Mrs. Carroll took part in the scuffle on the floor. He suffered injuries, cuts on his lip, face and body and a broken ankle. He became quite "bloody." When full consciousness returned, Mrs. Novick had her hands on his shoulders, shoving him towards the door. She told him to "get out and shut up." The Chief of Police put him in jail, handling him roughly during a search of his person. He could not make bail that night because it was too late and everybody was in bed. The jail was unsanitary, without drinking water or blanket. He remained there all night without medical care, cold, wet and bleeding. The next morning, the Carrolls signed a criminal complaint against him. He was released on bond, caught a plane to Anchorage, where he sought to obtain counsel, but did not succeed. The brawl had occurred on Friday. The trial on the criminal complaint took place the following Monday, before the Municipal Magistrate at Seward. Gouldsberry was taken from the hospital where he had gone for treatment, and escorted to the City Hall on crutches. He tried to make a defense, but the Chief of Police would not allow him to do so. He was found guilty and sentenced to 75 days in jail or $150 fine.

After the trial, Novick said: "What's the matter with you, Gouldsberry? Are you crazy? If I had been there, I would have broke your God damn neck." Gouldsberry returned to the hospital. It does not appear how long he remained there, but he did not learn of his sentence until after he was discharged from the hospital. He served a portion of it before being released on payment of the fine.

The appeal questions (1) the sufficiency of the evidence to sustain the verdict and judgment, (2) the correctness of certain of the Court's instructions to the jury, and (3) the refusal of requested instructions.

II The Inquiry Into the Insufficiency of the Evidence

At the outset, certain matters should be adverted to which affect the extent of our review of the rulings of the court below. The Federal Rules of Civil Procedure do not apply to the territorial district courts of Alaska. Federal Rules of Civil Procedure, rule 1, 28 U.S.C.A.; see, Mookini v. United States, 1938, 303 U.S. 201, 58 S.Ct. 543, 82 L.Ed. 748. And so, in seeking a solution for the problems of practice and procedure which this appeal presents, we must look to the statutes of the United States or the laws of the Territory of Alaska.

What is commonly known as a motion for a directed verdict is denominated by the law of Alaska as a motion for a non-suit. The statute provides that such motion may be given against the plaintiff "when, upon the trial, the plaintiff fails to prove a cause sufficient to be submitted to the jury." C.L.A.1913, Sec. 1069, C.L.A.1933, Sec. 3668, A.C.L.Ann.1949, Sec. 55-9-11.

This section accords with what was the federal rule generally, prior to the adoption of Rule 50, Federal Rules of Civil Procedure. And this Court has held that if such motion is made by a defendant and is overruled, it is waived by the subsequent introduction of evidence by him. Fulkerson v. Chisna Mining & Imp. Co., 9 Cir., 1903, 122 F. 782, 784; Walton v. Wild Goose Mining & Trading Co., 9 Cir., 1903, 123 F. 209, 214; Northwestern Steamship Co. v. Griggs, 9 Cir., 1906, 146 F. 472; and see, Hansen v. Boyd, 1896, 161 U.S. 397, 16 S.Ct. 571, 40 L.Ed. 746; Union Pacific Ry. Co. v. Daniels, 1894, 152 U.S. 684, 14 S.Ct. 756, 38 L.Ed. 597; Runkle v. Burnham, 1894, 153 U.S. 216, 222, 14 S.Ct. 837, 38 L. Ed. 694.

In order to avoid this consequence, the defendant, if he intends to challenge the sufficiency of the evidence after an adverse verdict, must renew the motion at the conclusion of all the testimony. Alaska Fishermen's Packing Co. v. Chin Quong, 9 Cir., 1913, 202 F. 707, 710; Courtnay v. King, 9 Cir., 1915, 220 F. 112; Sharples Separator Co. v. Skinner, 9 Cir., 1918, 251 F. 25; Bank of Italy v. F. Romeo & Co., Inc., 9 Cir., 1923, 287 F. 5; United Verde Copper Co. v. Jaber, 9 Cir., 1924, 298 F. 97; Ralston Purina Co. v. Novak, 8 Cir., 1940, 111 F.2d 631.¹ If he does not do so, the sufficiency of the evidence cannot be reviewed as error in "denying the motion for a new trial." Courtnay v. King, supra, 220 F. at page 113. And see, A.C.L.Ann. 1949, Secs. 55-7-131, 132; Copper River & N. W. Ry. Co. v. Reeder, 9 Cir., 1914, 211 F. 280, 286.

An examination of both the printed transcript of record and the typewritten transcript in the custody of the Clerk discloses the fact that, while a motion for a directed verdict was made at the conclusion of the plaintiff's case, the motion was not repeated after the completion of the rebuttal testimony. To the contrary, these transcripts show that after the rebuttal testimony of the plaintiff's witness, Henry J. Pallage, both sides rested. The legend reads: "And, thereupon, both sides having rested, the Court instructed the jury as follows:" This is followed immediately by the instructions of the court to the jury. It is evident, therefore, that, while the appellants' Assignment of Error No. 1 and their brief speak of a motion for a directed verdict in favor of the defendants "made after both sides had rested," and of an exception to the ruling being made and allowed, in truth, no such motion was made by the defendant except at the close of plaintiff's testimony. Under the circumstances, and in the light of the principles of law just discussed, the failure to renew the motion was a waiver and we cannot, on this appeal, review the sufficiency of the evidence.

III The Instructions

We now come to the instructions. Here, again, we are met with the situation that many of the instructions which are now claimed to be erroneous were not excepted to at the trial. Before elaborating on this matter, brief reference should be made to the law of Alaska on this subject.

Exceptions to all rulings of the trial court — including "the charge to the jury" — are still the governing principle of procedure in Alaska District Courts. C.L. A.1913, Secs. 1052-1054, C.L.A.1933, Secs. 3633-3635, A.C.L.Ann.1949, Secs. 55-7-121 to 123. Instructions are required to be in writing and to be given before the argument. C.L.A.1913, Sec. 1019, C.L.A.1933, Sec. 3591, A.C.L.Ann.1949, Sec. 55-7-61. The Judge may not "present the facts of the case, but shall inform the jury that they are the exclusive judges of all...