Tsai v. Rosenthal
| Decision Date | 22 December 1961 |
| Docket Number | No. 16713,16714.,16713 |
| Citation | 297 F.2d 614 |
| Parties | Johnson TSAI, Appellant, v. Anne C. ROSENTHAL and Mound Motors, Inc., Appellees, Anne C. ROSENTHAL, Appellant, v. Johnson TSAI and Mound Motors, Inc., Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Rolland L. Thorson, Minneapolis, Minn., for appellant Johnson Tsai.
O.C. Adamson, Minneapolis, Minn., for appellant Anne C. Rosenthal.
J. W. Cragg, Minneapolis, Minn., for appellee Mound Motors, Inc.
Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
Plaintiff Tsai and defendant Rosenthal have each appealed from an order of the District Court filed January 3, 1961, which set aside a judgment entered on November 7, 1960, upon special verdicts returned by the jury which awarded plaintiff damages against the defendant Mound Motors, Inc., (Mound); denied plaintiff relief upon his complaint as to the defendant Rosenthal; and denied Mound relief on its cross-complaint seeking damages, contribution and indemnity against Rosenthal. The court granted a new trial on plaintiff's claim against the defendants Mound and Rosenthal, limited to the issue of damages. Plaintiff brought this suit to recover damages for personal injuries he received in a three-car collision against Mound and Rosenthal, operators or owners of two of the three involved colliding vehicles.1
Jurisdiction, based upon diversity of citizenship and the jurisdictional amount, is established. The accident occurred in Minnesota. Consequently, Minnesota law governs.
Plaintiff filed a timely demand for jury trial. It is undisputed that plaintiff is entitled to a jury trial as a matter of right on his cause of action, pursuant to Rules 38 and 39.2
The court, as authorized by Rule 49(a), submitted this case to the jury upon forms of special verdicts which covered all fact issues presented by the case. Although the forms of special verdicts are referred to in the record at times as interrogatories, they are in fact special verdicts. No form of general verdict was submitted. The jury by its special verdicts determined all material fact issues. The special verdicts returned by the jury, pertinent to this appeal, are as follows:
Upon the basis of the special verdicts returned by the jury, the court on November 7, 1960, filed a judgment on the verdicts awarding the plaintiff judgment against Mound for $13,500, and denying Mound relief upon its cross-claim against Rosenthal.
Within ten days of the entry of such judgment Mound served and filed a timely motion asking that the judgment be vacated and that it be granted a new trial upon the following grounds:
1. That the judgment and the answers of the jury to interrogatories upon which it is made are not supported by and are contrary to the evidence.
2. That the judgment and the answers of the jury to interrogatories upon which it is made are contrary to law.
3. Errors relating to the giving and failing to give certain specified instructions.
4. Excessive damages.
In the alternative Mound "moves the Court for an order amending the answers to interrogatories of the jury herein by changing the answer to interrogatory number 2 from `No' to `Yes', upon the ground that the answer `No' as recorded by the jury is not supported by and is contrary to the evidence, and is contrary to law, and that the Findings of Fact, Conclusions of Law, Order for Judgment and Judgment be appropriately changed and amended to correctly reflect such changed answer."
The court, after hearing, entered an order on January 3, 1961, vacating the judgment, denying a new trial on all issues, and denying the alternative motion except as therein otherwise granted, and then goes on to say:
"The Court on its own motion grants a new trial herein on the question of damages only as to defendants Mound and Rosenthal."
Plaintiff and Rosenthal, as a basis for reversal of the order vacating the judgment and granting a new trial on the damage issue, assert:
1. The trial court lacked power or jurisdiction to order a new trial upon its own motion, since the court did not act within ten days after the entry of judgment.
2. The trial court lacked power or jurisdiction to order a new trial on the issue of damages only.
Rosenthal raises the additional point that the court lacked jurisdiction to order judgment n.o.v. insofar as the court's order granted such relief.
The record before us consists of the pleadings, motions, judgment entries and orders, the special verdicts of the jury and the court's memorandum opinion (26 F.R.D. 393), and the notices of appeal. The record does not include the evidence introduced or the court's instructions. The parties treat the questions here presented as jurisdictional questions. Our consideration of this appeal is limited to the jurisdictional issues. The exclusion of the evidence from the record would in any event make it impossible for us to review the issue of whether the court properly exercised its discretion.
The parties agree, as they must, that a motion for new trial is directed to the sound discretion of the trial court and that ordinarily the granting or denial of a motion for new trial is not an appealable order. See Cooper v. Midwest Feed Products Co., 8 Cir., 271 F.2d 177; Gallon v. Lloyd-Thomas Co., 8 Cir., 261 F.2d 26.
Where the jurisdiction of the court to vacate judgment and grant a new trial is challenged, an appeal will lie to review the power or jurisdiction of the court to make such order. Phillips v. Negley, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed. 1013; Cooper v. Midwest Feed Products Co., supra; Jackson v. Wilson Trucking Corp., 100 U.S.App.D.C. 106, 243 F.2d 212; Kanatser v. Chrysler Corp., 10 Cir., 199 F.2d 610; City of Manning v. German Ins. Co., 8 Cir., 107 F.52.
In our recent Cooper case, supra, we quoted and applied the law, as stated in the City of Manning case, as follows:
" " 271 F.2d 179.
It is the position of both appellants that the court lacked jurisdiction to set aside its judgment and to grant the new trial limited to damages. The court in its order and memorandum states that it is taking such action upon its own motion. Rule 59(d), covering the power of the courts to grant new trials upon their own initiative, reads:
"Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor."
Rule 59(d) has been interpreted by the courts as conferring jurisdiction upon the trial court to act upon its own initiative only during the ten days immediately following the entry of the judgment. Jackson v. Wilson Trucking Corp., supra; Kanatser v. Chrysler Corp., supra; National Farmers Union Auto. & Cas. Co. v. Wood, 10 Cir., 207 F.2d 659; Freid v. McGrath, 76 U.S.App.D.C. 388, 133 F.2d 350; see Moore, Federal Practice, ¶ 59.09 at p. 3851 and ¶ 59.11 at pp. 3872-73.
We agree with such interpretation. The rule appears to clearly and unambiguously so require. No express provision is made for extension of time for the court to act upon its own motion, in event a motion is made by a party, nor can such extension be fairly implied.
It is undisputed that the court action here took place more than ten days after verdict and the entry of the judgment. Thus the court was without jurisdiction to grant a new trial upon its own motion as it purported to do.
The court, under the circumstances presented by this case, also lacked jurisdiction to grant a new trial limited to damages only. It is true that Rule 59 authorizes a new trial upon all or part of the issues and that partial new trials may be granted under proper circumstances. For example, if the court had felt that the issue of liability was fairly decided but that the wrong measure of damages had been prescribed, a new trial could in the proper exercise of the court's discretion have been granted on the damage issue only. See 6 Moore, Federal Practice, ¶ 59.06.
In our present case the conclusion is inescapable that the court, in granting a new trial as to damages only, has substituted its finding that Rosenthal's negligence was a proximate cause of the injury for the special verdict of the jury finding that Rosenthal's negligence was not a proximate cause of plaintiff's injury. The court by its order has in effect...
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