Terrasi v. South Atlantic Lines

• Decision Date: 31 October 1955
• Docket Number: Docket 23587.,No. 48,48
• Citation: 226 F.2d 823
• Parties: Andrew TERRASI v. SOUTH ATLANTIC LINES, Inc.
• Court: U.S. Court of Appeals — Second Circuit

226 F.2d 823 (1955)

Andrew TERRASI v.SOUTH ATLANTIC LINES, Inc.

No. 48, Docket 23587.

United States Court of Appeals Second Circuit.

Argued October 5, 1955.

Decided October 31, 1955.

Harry D. Graham, New York City, for plaintiff-appellant.

Louis J. Gusmano, New York City(Kirlin, Campbell & Keating, New York City, on the brief), for defendant-appellee.

Before CLARK, Chief Judge, and MEDINA and LUMBARD, Circuit Judges.

CLARK, Chief Judge.

This is an appeal by the plaintiff from a verdict and judgment for the defendant in his action for damages for personal injuries alleged to have been sustained through the negligence of defendant while he was a passenger at sea on the defendant's S.S. "Italia."At the outset we must consider defendant's motion to dismiss the appeal as not timely.When the defendant's verdict was rendered on January 20, 1955, plaintiff at once made an oral motion for a new trial, which the court as promptly denied.The next day, January 21, the plaintiff filed a formal written motion for reargument of his motion for a new trial setting forth various grounds upon which he contended that he was entitled to such trial; and this the defendant's counsel answered by affidavit on January 25.Meanwhile a formal judgment for the defendant was entered by the clerk on January 21.Plaintiff's motion was denied by the court on February 28 in a brief memorandum endorsed upon it, in which it is described as the "motion to set aside the verdict and for a new trial," and which discloses that the court considered it on the merits.Plaintiff's appeal followed on March 2 — too late if his time runs from the date of the formal judgment, but in time if it runs from the denial of the motion.

Defendant asserts that a motion for a reargument is not within the several motions specified in F.R. 73(a) as suspending and thus extending the time within which an appeal can be taken.But this is too literal a reading of the language of the rule.A motion for reargument of a motion for a new trial is of course nothing but a motion for rehearing thereof, and thus in essence is itself but an application for a new trial under F.R. 59(a), which explicitly includes all applications for rehearing as previously understood.Thus the Advisory Committee's Note to this rule shows that it includes the former "petition for a rehearing" of Equity Rule 69.As pointed out in Slater v. Peyser, 91 U.S.App.D.C. 314, 200 F.2d 360, 361: "Under Rule 59(a), Fed.Rules Civ.Proc. 28 U.S.C.A. a motion for rehearing is equivalent to a motion for a new trial."The very reasons which led the Advisory Committee to recommend the amended Rule 73(a) in the interest of clarity and to avoid confusion as to the proper time for appeal apply equally to this motion.Of course it must be timely made within 10 days, as specified in F.R. 59(b), and thus in any event cannot delay the proceedings unduly.The appeal here properly taken when the motion was denied is therefore timely.SeeAnderson v. Continental S. S. Co., 2 Cir., 218 F.2d 84;Mosier v. Federal Reserve Bank ofNew York, 2 Cir., 132 F.2d 710, and the cases cited in the annotation 10 A.L.R.2d 1075 at pages 1079, 1080.Cases such as Marten v. Hess, 6 Cir., 176 F.2d 834, Deena Products Co. v. United Brick & Clay Workers of America, 6 Cir., 195 F.2d 612, certiorari denied344 U.S. 822, 73 S.Ct. 21, 97 L.Ed. 640, andRandolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956, are distinguishable as referring to motions either not timely made or otherwise not the equivalent of the one filed here.SeeMorley v. United States, 6 Cir., 207 F.2d 654, pointing out the lack of timeliness of the motion for rehearing there.

The plaintiff's appeal is based on the contention that in the early morning of May 21, 1950, while on a trip as a third-class passenger from New York to Palermo, Sicily, and while ascending a staircase on the ship from C deck, where his cabin was, to the toilet facilities on B deck, he was suddenly struck from behind upon his head by an unidentified assailant and rendered unconscious.On these alleged facts he asserted negligence on the part of the ship in failing to furnish watchmen to protect passengers from assault.Defendant, on the other hand, while denying any negligence, contended that there was no assault and that plaintiff was seized with a fit of dizziness while ascending the staircase, and fell, striking his head.These conflicting issues were duly presented to the jury, together with the also conflicting testimony as to the nature of the care received by plaintiff after his injury.The jury, after an appropriate...