Railway Express Agency v. Epperson

• Decision Date: 18 January 1957
• Docket Number: No. 15632.,15632.
• Citation: 240 F.2d 189
• Parties: RAILWAY EXPRESS AGENCY, Inc., a corporation, Appellant, v. Leverett Ray EPPERSON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

240 F.2d 189 (1957)

RAILWAY EXPRESS AGENCY, Inc., a corporation, Appellant, v. Leverett Ray EPPERSON, Appellee.

No. 15632.

United States Court of Appeals Eighth Circuit.

January 18, 1957.

COPYRIGHT MATERIAL OMITTED

W. H. Bates, Kansas City, Mo. (Lathrop, Righter, Blackwell & Parker and Sam D. Parker, Kansas City, Mo., were with him on the brief), for appellant.

Lucian Lane, Kansas City, Mo. (W. F. Woodruff, Woodruff & Lane, Kansas City, Mo., William H. Enfield, and Little & Enfield, Bentonville, Ark., were with him on the brief), for appellee.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

The defendant (appellant) in this personal injury action, which was tried to a jury, seeks a review and reversal of a judgment in favor of the plaintiff (appellee). As grounds for reversal, the defendant asserts that the District Court erred in denying a motion for a directed verdict in favor of the defendant; in rulings on evidence; in denying a motion for a mistrial on account of improper argument; and in its instructions. The defendant also argues that the verdict is excessive.

The plaintiff has moved to dismiss the appeal upon the ground that this Court is without jurisdiction, the notice of appeal being fatally defective. The defendant has moved to amend its notice of appeal.

The questions raised by the motion to dismiss and on the merits have been briefed and argued. It is necessary first to determine whether this Court has jurisdiction of the appeal.

The jury on May 10, 1956, returned a verdict against the defendant for $37,500, and judgment was entered on that day. The defendant on May 19, 1956, filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. The motion for judgment was denied on June 9, but the motion for a new trial was granted unless the plaintiff should file a remittitur of $7,500 of the judgment. The plaintiff on June 15 filed a remittitur "so that said judgment after such remittitur shall be in favor of the plaintiff * * * in the sum of $30,000.00." The defendant on July 7 filed a notice of appeal "from the order overruling defendant's Motion for Judgment or in the Alternative for New Trial, conditioned upon the filing of remittitur by Plaintiff, said order entered in this action on June 9, 1956, and remittitur in compliance therewith having been filed June 15, 1956."

The defendant on July 7, the same day that the notice of appeal was filed, made a motion for a stay of enforcement of the judgment pending appeal, upon the giving of a supersedeas bond. The court entered an order on July 7, staying the enforcement of "the judgment entered herein on the 15th day of June, 1956, * * * pending the determination of defendant's appeal from such judgment, upon the filing by defendant and approval by this Court of a bond in the sum of Thirty-five Thousand ($35,000) Dollars." The supersedeas bond was furnished on July 7. It contained the following language:

"Whereas on June 15, 1956, in an action pending in the United States District Court for the Western District of Missouri, Western Division, between Leverett Ray Epperson as plaintiff and Railway Express Agency, Inc., as defendant, a judgment was rendered against the said Railway Express Agency, Inc., and the said Railway Express Agency, Inc., having filed a notice of appeal from such judgment to the United States Circuit Court of Appeals for the Eighth Circuit;

"Now, the condition of this obligation is such, that if the said Railway Express Agency, Inc., shall prosecute its appeal to effect and shall satisfy the judgment in full together with costs, interest and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed, or shall satisfy in full such modification of the judgment and such costs, interest and damages as the said Circuit Court of Appeals may adjudge and award, then this obligation to be void; otherwise to remain in full force and effect."

Copies of the notice of appeal, the motion for supersedeas, the order granting it, and the bond were received by counsel for the plaintiff on July 7.

It is true, as the plaintiff points out, that this Court has thus far consistently ruled that an order denying a motion for judgment notwithstanding a verdict or in the alternative for a new trial, or any similar motion the purpose of which is to obtain the vacation or modification of a judgment, or a new trial or a rehearing, is not appealable and that an appeal from such an order is not an appeal from the judgment complained of nor the equivalent of such an appeal. See United States v. Muschany, 8 Cir., 156 F.2d 196, 197; St. Luke's Hospital v. Melin, 8 Cir., 172 F.2d 532; Chicago, St. P. M. & O. R. Co. v. Pender Drainage District, 8 Cir., 183 F.2d 773; Payne v. Koehler, 8 Cir., 225 F.2d 103, certiorari denied 350 U.S. 904, 76 S.Ct. 183, rehearing denied 350 U.S. 955, 76 S.Ct. 341.

It has seemed to us not unreasonable to require not only that an appeal be taken within the time fixed by Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., but that "The notice of appeal * * * shall designate the judgment or part thereof appealed from * * *," as provided by Rule 73(b). We gather, however that a failure to designate in the notice of appeal the judgment complained of is not a fatal defect if the intent of the appellant to appeal from the judgment may be inferred from the text of the notice and if the appellee has not been misled by the defect. This seems to be the inference to be drawn from the reversal, without opinion, by the Supreme Court, 350 U.S. 944, 76 S.Ct. 321, of the decision of the Court of Appeals for the Ninth Circuit in State Farm Mutual Automobile Ins. Co. v. Palmer, 225 F.2d 876, dismissing an action for want of jurisdiction because of a defective notice of appeal. In that case the Court of Appeals for the Ninth Circuit pointed out that the notice stated that the appeal was taken from an order denying a motion for a new trial and to amend findings, but said: "The intention to ask review of the judgment might be inferred from the text of the notice." Page 877 of 225 F.2d.

In the instant case the intention of the appellant to ask for a review and reversal of the judgment which became final on June 15, when the remittitur was filed, reasonably can be deduced from the text of the notice of appeal referring to the remittitur filed on June 15. Moreover, the intention of the defendant to challenge the judgment was made certain by the motion for supersedeas, the order for supersedeas and the supersedeas bond, which were all filed and served contemporaneously with the notice of appeal.

The motion of the defendant to amend its notice of appeal is denied as untimely and unnecessary. The motion of the plaintiff to dismiss the appeal is also denied.

The accident out of which this action arose occurred at the Union Station in Kansas City, Missouri, about 9:30 P.M. on June 5, 1954. The plaintiff, an employee of the Kansas City Terminal Railway Company, with several more of its employees, was unloading mail from a Santa Fe train into a wagon of the Terminal Railway Company located on the station platform, adjacent to the mail car. The plaintiff was standing on the wagon, handling mail sacks passed to him by his co-workers from inside the car. He was stacking the sacks at the end of the wagon. While engaged in this work, some part of the wagon was struck by some part of a drag or train of wagons belonging to the defendant and being pulled westerly along the station platform by one of the defendant's tractors, such a tractor as was customarily used by the defendant in conducting its business at the station. The impact of the collision drove the wagon on which the plaintiff was standing violently toward the west, and he was thrown down and injured. The driver, whose careless operation of the defendant's tractor and train of wagons caused the accident, did not stop and was not identified by the plaintiff or any of his co-workers. They did, however, identify the tractor and train of wagons as belonging to the defendant.

The issues under the pleadings were those usual in such cases, namely, liability and damages. The defendant contends that the plaintiff did not make a case for the jury on the issue of liability and that the court should have directed a verdict. That question, however was not properly preserved for review.

The defendant at the close of the evidence made a motion for a directed verdict "for the following reasons: 1. Plaintiff has failed to prove, by substantial evidence, a claim or cause of action upon which relief can be granted against Defendant. 2. Plaintiff has failed to prove, by substantial evidence, any actionable negligence against the defendant."

Rule 50(a) of the Federal Rules of Civil Procedure provides: "A motion for a directed verdict shall state the specific grounds therefor." This provision was declaratory of what had long been the law. See Mansfield Hardwood Lumber Co. v. Horton, 8 Cir., 32 F.2d 851, 852-853; Ayers v. United States, 8 Cir., 58 F.2d 607, 608-609. There was nothing specific about the grounds stated by defendant's counsel in his motion for a directed verdict. It is apparent, however, that the trial judge knew what counsel was driving at. So once again we shall accept intent for performance.

The defendant's argument was that the evidence was insufficient to justify a finding that the driver of the defendant's tractor, who caused the accident, was an employee of the defendant, acting within the scope of his employment. There was abundant evidence that the tractor and drag belonged to the defendant and was used in the conduct of its business in the Kansas City Union Station. There was also evidence from which the jury reasonably could infer that the tractors of the defendant were driven by no one other than its own employees. The likelihood that some interloper had, at the time of the...