Tribble v. Bruin, 8046.

• Decision Date: 30 May 1960
• Docket Number: No. 8046.,8046.
• Citation: 279 F.2d 424
• Parties: G. P. TRIBBLE, Allen Harper and One 1953 White Tractor bearing 1954 Georgia License Plate A/H4892, Appellants, v. Nancy BRUIN, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

279 F.2d 424 (1960)

G. P. TRIBBLE, Allen Harper and One 1953 White Tractor bearing 1954 Georgia License Plate A/H4892, Appellants, v. Nancy BRUIN, Appellee.

No. 8046.

United States Court of Appeals Fourth Circuit.

Argued April 20, 1960.

Decided May 30, 1960.

Joseph R. Young, Charleston, S. C. (Hagood, Rivers & Young, Charleston, S. C., on brief), for appellants.

W. Brantley Harvey, Beaufort, S. C. (Harvey & Harvey, Beaufort, S. C., on brief), for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAMLEY,^* Circuit Judges.

SOBELOFF, Chief Judge.

This appeal raises a procedural problem relating to the power of the District Court to act upon a motion for a new trial after this court issued its mandate in an earlier appeal.

The background of this protracted litigation may be briefly summarized. On the night of July 1, 1954, plaintiff, Nancy Bruin, was injured by a tractor-trailer while crossing a street intersection in Bluffton, South Carolina. She subsequently sued the owner of the trailer, G. P. Tribble, and its operator, Allen Harper, to recover actual and punitive damages. The case was tried in the District Court on January 30 and 31, 1956, and at the close of the testimony, the defendants moved for a directed verdict. Denying the motion, the District Judge submitted the case to the jury, which returned a verdict for the plaintiff in the amount of $1,380.85 actual damages and $1,000 punitive damages. Thereafter, defendants moved under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for a judgment n. o. v. and, in the alternative, for a new trial. The plaintiff also moved for a new trial, on the ground that the verdict was inadequate.

The District Judge, thinking the plaintiff guilty of gross contributory negligence as a matter of law, granted defendants' motion for judgment n. o. v. He found it unnecessary to pass on defendants' alternative motion for a new trial. As to the plaintiff's motion for a new trial, the Judge later explained:

"* * * I did not rule upon plaintiff\'s motion for a new trial since I decided that the defendants were entitled to a judgment notwithstanding the verdict. I did feel and announce that if the plaintiff was entitled to a verdict, the verdict of the jury was inadequate in view of the serious injuries she received."

From the entry of the judgment against her, plaintiff appealed, assigning error to the District Court in holding her guilty of gross contributory negligence as a matter of law. On the appeal, this court held, in an opinion filed on November 7, 1956, that the questions of contributory negligence and last clear chance were sufficiently in doubt to require their submission to the jury. The opinion concluded as follows:

"The judgment of the District Court will be reversed and the case will be remanded with directions to reinstate the verdict of the jury and enter judgment thereon.

"Reversed and Remanded." Bruin v. Tribble, 4 Cir., 1956, 238 F.2d 12, 14.

The mandate of the court, issued on December 10, 1956, declared:

"* * * It is now here ordered and adjudged by this Court that the judgment of the said District Court appealed from, in this cause, be, and the same is hereby, reversed with costs; and that this cause be, and the same is hereby, remanded to the United States District Court for the Eastern District of South Carolina, at Charleston, with directions to reinstate the verdict of the jury and enter judgment thereon in accordance with the opinion of the Court filed herein."

Upon the filing of the mandate, plaintiff requested the District Court to rule on her motion for a new trial based on the ground of the inadequacy of the verdIct. Several hearings took place before the District Judge, who held the matter under advisement. For reasons which are unexplained, the District Judge did not enter judgment in accordance with the mandate until August 1, 1959; he still had not passed on the question of a new trial. Subsequently, plaintiff renewed her motion for a new trial, and on November 30, 1959, the District Judge signed an order setting aside the judgment and granting plaintiff a new trial.

The defendant brings this appeal, contending that the District Judge lacked the power to grant a new trial, after our mandate, rightly or wrongly, instructed him to reinstate the jury verdict and enter judgment thereon.

Initially, it should be observed that the District Judge ought to have ruled on the new trial motions when he granted the defendants' motion for judgment n. o. v. In the leading case of Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147, the Supreme Court held that if alternative motions are presented under Rule 50(b) for judgment n. o. v. and for a new trial, the District Judge should rule on the motion for judgment, and "whatever his ruling thereon he should also rule on the motion for a new trial, indicating the grounds of his decision." 311 U.S. at page 253, 61 S.Ct. at page 195. Where, as here, in addition to alternative motions by the losing party there is also a motion for new trial by his adversary, the District Judge should pass on all the motions, stating the grounds for each decision. Such a practice not only conforms to the requirements laid down in Montgomery Ward & Co. v. Duncan, but is conducive to "the just, speedy, and inexpensive determination of every action." F.R.Civ.P., Rule 1.

We note further that when our opinion was filed, with its direction to reinstate the jury verdict, plaintiff's proper course was to petition this court for a rehearing or modification of the mandate on the ground that the new trial motion, based on insufficiency of damages, had not been acted upon below or considered by us, and should not be precluded. Rule 19, Rules of the United States Court of Appeals for the Fourth Circuit, 28 U.S.C.A. Strictly speaking, plaintiff's motion for a new trial was not timely when renewed in the District Court after judgment was entered. F.R. Civ.P., Rule 59(b). Nevertheless, in the interests of justice, we will consider the renewed motion as one seeking relief under Rule 60. See United States v. Wissahickon Tool Works, Inc., 2 Cir., 1952, 200 F.2d 936; In re Marachowsky Stores Co., 7 Cir., 1951, 188 F.2d 686; 6 Moore's Federal Practice, p. 3719 (2nd ed.) and cases cited therein.

Ordinarily, a District Court may relieve a party from a final judgment or order under Rule 60(b) (6) for any reason justifying relief other than those specifically stated in Rule 60(b) (1) through (b) (5). As stated in Klapprott v. United States, 1948, 335 U.S. 601, 614, 69 S.Ct. 384, 390, 93 L.Ed. 266,

"In simple English, the language of the `other reason\' clause, for all reasons except the five particularly specified, vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice."

However, where the District Court is asked to take action which would be inconsistent with the mandate of the Court of Appeals, it has generally been held that the District Court lacks the power to proceed unless and until leave is granted by the...