Southeastern Greyhound Lines v. McCafferty, 10584.

• Decision Date: 08 November 1948
• Docket Number: No. 10584.,10584.
• Citation: 169 F.2d 1
• Parties: SOUTHEASTERN GREYHOUND LINES et al. v. McCAFFERTY.
• Court: U.S. Court of Appeals — Sixth Circuit

169 F.2d 1 (1948)

SOUTHEASTERN GREYHOUND LINES et al. v. McCAFFERTY.

No. 10584.

Circuit Court of Appeals, Sixth Circuit.

June 3, 1948.

Rehearing Denied August 23, 1948.

Writ of Certiorari Denied November 8, 1948.

R. W. Keenon, of Lexington, Ky. (James Park, Stroll, Muir, Townsend, Park & Mohney, and Keenon & ODear, all of Lexington, Ky., and Bell, Stagner & Orr, of Bowling Green, Ky., on the brief), for appellants.

Cecil C. Wilson, of Glasgow, Ky. (Wilson & Wilson and George J. Ellis, Jr., all of Glasgow, Ky., on the brief), for appellee.

Before HICKS, SIMONS and MARTIN, Circuit Judges.

HICKS, Circuit Judge.

Suit by appellee, McCafferty, against appellants, Southeastern Greyhound Lines, a common carrier of passengers and herein called Southeastern, and G. D. Masters, the operator of one of Southeastern's motorbusses, for damages for personal injuries and to appellee's automobile, caused by the alleged negligence of Masters in the operation of the motor bus. Appellants denied the material allegations of the complaint and for further answer pleaded contributory negligence.

The case proceeded to trial. There was no motion by appellants for a directed verdict either at the close of appellee's evidence or at the close of all the evidence. There was no exception to the charge touching any matter involved here. At the conclusion of the charge the court furnished the jury with a blank form for its verdict, which read as follows:

"Civil Docket No 261 Frank A. McCafferty, ...........Plaintiff vs Southeastern Greyhound Lines and J. D. (Happy) Masters,.. Defendants "We, the Jury find for the ______ ___________ "Foreman"

The form of verdict was also submitted to opposing counsel and there was no objection to it. The verdict returned was in the following form, to wit:

"* * * Frank A. McCafferty..........Plaintiff vs Southeastern Greyhound Lines and J. D. (Happy) Masters. Defendants

We, the Jury find for the plaintiff

                  Dr. Bill                    $   195.00
                  Hospital                        210.00
                  Loss of Work                    600.50
                  Loss of Car                   1,000.00
                  Suffering                     2,000.00
                  Permanent physical injuries   8,000.00
                                              __________
                                              $12,005.50
                

/s/ J. A. Ogden, Foreman Date: May 23, 1947"

When the jury returned the verdict, the court said: "Read the verdict, Miss Harris, please." Presumably, Miss Harris was a deputy clerk. She omitted the style of the case as it appeared on the form used and read as follows:

"Verdict of the Jury

"We, the Jury find for the plaintiff:

                  "Doctor bill ................... $  195.00
                   Hospital bill .................    210.00
                   Loss of work ..................    600.50
                   Loss of car ...................   1000.00
                   Suffering .....................   2000.00
                   Permanent physical injuries ...   8000.00
                                                   __________
                   Total ......................... $12,005.50
                

"Signed by the Foreman, J. A. Ogden."

The verdict and judgment was entered on the record. The judgment, so far as is material, was as follows:

"It is therefore adjudged by the court that the plaintiff do have and cover of the defendant, Southeastern Greyhound Lines, the sum of $12,005.50, with 6% per annum interest thereon from May 23, 1947, until paid, the cost of this action. * * *"

Appellant, Southeastern, at that time, May 23, 1947, made no motion to direct a verdict, notwithstanding the verdict of the jury. On May 26, following, it entered a motion for a new trial, which was overruled on May 28th.

The motion for a new trial was based on the following grounds, — (1) that the verdict was contrary to law; (2) that it was not supported by the evidence; (3) that the evidence was insufficient, in certain particulars, to justify the verdict; (4) that the verdict was excessive; and (5) that the court erred in refusing to instruct the jury that if it should find that the plaintiff was not the owner of the automobile involved it would award him nothing for the damage thereto.

There is nothing in the record to indicate any abuse of judicial discretion in overruling this motion.

On June 21st, Southeastern moved the court to set aside the order overruling its motion for a new trial and grant it an oral hearing thereon. The foundation for this motion was that its liability could only arise through the liability of its co-defendant, Masters, its servant and employee; and the jury having returned no verdict against Masters, no judgment should be entered against it. The court granted the oral hearing but declined to set aside the judgment. It amended...