Shaw v. Hines Lumber Co.

• Decision Date: 30 October 1957
• Docket Number: No. 11997.,11997.
• Citation: 249 F.2d 434
• Parties: Rita E. SHAW, Plaintiff-Appellant, v. EDWARD HINES LUMBER CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

249 F.2d 434 (1957)

Rita E. SHAW, Plaintiff-Appellant, v. EDWARD HINES LUMBER CO., Defendant-Appellee.

No. 11997.

United States Court of Appeals Seventh Circuit.

October 30, 1957.

David P. List, Chicago, Ill., John H. Rockwell, Chicago, Ill., Hastings, Snyder & Rockwell, Chicago, Ill., of counsel, for appellant.

Lloyd P. Douglas, Chicago, Ill., Herbert T. Price, Chicago, Ill., Price, Roddy & Schlager, Chicago, Ill., of counsel, for appellee.

Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Plaintiff appeals from a judgment in defendant's favor in an action to recover damages for injuries sustained in an automobile accident, in which a tractor-trailer driven by an employee of defendant collided with plaintiff's car at a street intersection.

At the close of plaintiff's evidence, defendant's motion for a directed verdict was denied and, at the close of all the evidence, it was renewed. The court reserved decision thereon and submitted the case to a jury, which returned a verdict in favor of plaintiff. On the same day, when defendant asked the court to set for hearing its motion for directed verdict, the court set the matter for argument on January 14, 1957. No judgment had been entered. Upon conclusion of argument on the motion, the trial judge, concluding that it should have been sustained, allowed it, set aside the verdict and entered judgment for defendant. In addition, defendant's motion for a new trial was ordered allowed in the event the decision on the motion for directed verdict should upon appeal be held to have been erroneous.

At the outset it is necessary to consider plaintiff's contention that the district court was without power to grant defendant's motion for directed verdict and to enter judgment thereon, in view of Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which is as follows:

"(b) Reservation of Decision on Motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial."

It is plaintiff's position that defendant failed to conform to the procedure set forth in Rule 50(b) whereby a court may enter judgment upon a motion for directed verdict, in that it failed to present to the district court any proper additional post-verdict motion. Based on this assertion it is urged that the trial court lacked power to enter judgment contrary to the verdict, even though it had expressly reserved decision on defendant's motion for directed verdict. Implicit in plaintiff's argument is the premise that a specific motion for judgment notwithstanding the verdict is a prerequisite to the trial court's power to enter judgment contrary to the verdict.

Prior to adoption of Rule 50(b), it was thought that, in order that a court might enter judgment contrary to the verdict, it was necessary that the court expressly reserve its decision on a motion for directed verdict in order to obviate difficulties presented by the Seventh Amendment. See Baltimore & Carolina Line, Inc., v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636. However, as pointed out in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 250, 61 S.Ct. 189, 193, 85 L.Ed. 147: "The rule was adopted for the purpose of speeding litigation and preventing unnecessary re-trials. * * * Rule 50(b) merely renders unnecessary a request for reservation of the question of law or a formal reservation and, in addition, regulates the time and manner of moving for direction and of moving for judgment on the basis of the refusal to direct." See also Guerrero v. American-Hawaiian Steamship Co., 9 Cir., 222 F.2d 238; Brunet v. S. S. Kresge Co., 7 Cir., 115 F.2d 713. Furthermore, there is no doubt but that one of the cogent reasons for the rule was the desire to permit the trial court to resolve any doubt as to the sufficiency of the evidence subsequent to the rendition of the verdict, thereby placing the case in such a posture that, in the event it should be concluded upon review that the court erred in directing a verdict, the original verdict may be reinstated without a new trial. See Craighead v. Missouri Pac. Transportation Co., 8 Cir., 195 F.2d 652, 657; Fratta v. Grace Line, Inc., 2 Cir., 139 F.2d 743, 744. It is clear that a court may expressly reserve decision on a motion for directed verdict. Karnowski v. Skelly Oil Co., 10 Cir., 174 F.2d 770; Western Union Telegraph Co. v. Dismang, 10 Cir., 106 F.2d 362. Indeed, various courts have recommended that trial courts reserve their decisions on such motions. See Fratta v. Grace Lines, Inc., supra, 139 F.2d at page 744. This recommendation is made, not only for the purpose of avoiding unnecessary delay, but, in addition, to provide a procedure which gives the trial judge adequate opportunity properly to scrutinize the record and to make informed, considered rulings. See Baltimore & Carolina Line, Inc. v. Redman, supra.

In considering the question whether it is always necessary to make a specific post-verdict motion for judgment notwithstanding the verdict, it is well to keep in mind the function of such a motion. Concededly, the questions raised by a motion for directed verdict and by a motion for judgment notwithstanding the verdict are the same. Montgomery Ward & Co. v. Duncan, supra. In Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849, the Supreme Court quite clearly pointed out the function of a motion for judgment notwithstanding a verdict, although in that case the Court was considering a question somewhat different from that with which we are now confronted. In the Cone case, after all the evidence had been submitted and defendant's motion for a directed verdict had been denied, the case was submitted to the jury. A verdict for plaintiff was returned and judgment entered thereon. Thereafter, defendant presented a motion for a new trial on the ground of newly discovered evidence, which was denied. However, defendant failed to move for judgment notwithstanding the verdict. On appeal, the judgment was reversed and remanded with directions to enter judgment for defendant. The precise question presented to the Supreme Court was whether the court of appeals could properly order judgment entered on the basis of defendant's motion for directed verdict, in the absence of a proper motion for judgment notwithstanding the verdict. This situation is unlike the one before us where the question is one of the power of the district court to enter judgment on the basis of a motion for a directed verdict, in the absence of any further post-verdict motion, when the court has expressly reserved its decision on the original motion. The Court, in Cone, held that the court of appeals lacked the power to enter such a judgment because the trial court had never had an opportunity to exercise its discretion, as provided for in Rule 50(b), to grant a new trial rather than a motion for judgment notwithstanding the verdict. There is little doubt but that the Supreme Court was concerned with the fact that the plaintiff had been deprived of any opportunity to ask for a new trial when it stated (330 U.S. 212, 215, 216, 67 S.Ct. 752, 754): "Rule 50(b) contains no language which absolutely requires a trial court to enter judgment notwithstanding the verdict even though that court is persuaded that it erred in failing to direct a verdict for the losing party. The rule provides that the trial court `may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.' This `eitheror' language means what it seems to mean, namely, that there are circumstances which might lead the trial court to believe that a new trial rather than a final termination of the trial stage of the controversy would better serve the ends of justice. In short, the rule does not compel a trial judge to enter a judgment notwithstanding the verdict instead of ordering a new trial; it permits him to exercise a discretion to chose between the two alternatives. See Berry v. United States, 312 U.S. 450 452, 453, 61 S.Ct. 637, 85 L.Ed. 945. And he can exercise this discretion with a fresh personal knowledge of the issues involved, the kind of evidence given, and the impression made by witnesses. His appraisal of the bona fides of the claims asserted by the litigants is of great value in reaching a conclusion as to whether a new trial should be granted. Determination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart."

In Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177, the Court reiterated the doctrine enunciated in Cone. In Globe Liquor, as in Cone, the explicit question presented to the Court was whether the appellate court had power to...