Turner v. Japan Lines, Ltd.

• Decision Date: 08 February 1983
• Docket Number: 79-4062 and 79-4182,Nos. 79-4060,s. 79-4060
• Citation: 702 F.2d 752
• Parties: James TURNER, Plaintiff-Appellant and Cross-Appellee, v. JAPAN LINES, LTD., and Philippine President Lines Inc., Manila, Defendants-Appellees and Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 752

702 F.2d 752

1984 A.M.C. 2703

James TURNER, Plaintiff-Appellant and Cross-Appellee, v. JAPAN LINES, LTD., and Philippine President Lines Inc., Manila, Defendants-Appellees and Cross-Appellants.

Nos. 79-4060, 79-4062 and 79-4182.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 11, 1982.

Decided Feb. 8, 1983.

Raymond J. Conboy, Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland, Or., for Turner.

Paul N. Daigle, and Ridgway K. Foley, Jr., Schwabe, Williamson, Wyatt, Moore & Roberts, John R. Brooke, Wood, Tatum, Mosser, Brooke & Holden, Portland, Or., for Japan Lines.

Appeal from the United States District Court for the District of Oregon.

On Motion to Amend Mandate

Before FLETCHER and FERGUSON, Circuit Judges, and GRANT, ^* District Judge.

PER CURIAM.

On July 27, 1981, we issued an opinion in this case holding that the trial court had improperly granted judgment n.o.v. in favor of the defendants. ¹ 651 F.2d 1300. Our reversal of the judgment of the district court will result, on remand, in the reinstatement of the jury verdict for the plaintiff rendered on October 6, 1978.

Following the denial of petitions for certiorari by the Supreme Court and before our mandate issued, plaintiff moved that the mandate be amended to include interest from the October 6, 1978 date of the jury verdict until payment by defendants. We granted a stay of mandate pending further order of the court on November 12, 1982.

I. Allowance of Interest.

Fed.R.App.P. 37 provides that where "a judgment is ... reversed with a direction that a judgment for money be entered in the district court, the mandate shall contain instructions with respect to allowance of interest." While Rule 37 emphasizes that the appellate court is responsible for determining whether a judgment entered on remand is to include interest for any period of time before the entry of judgment on remand, the rule does not state the source of the appellate court's authority to order interest to run before entry of the judgment on remand. We find authority under 28 U.S.C. Sec. 1961 (1976) for allowance of interest from October 6, 1978, the date on which the original jury verdict was entered in favor of plaintiff, until payment by defendants.

Section 1961 states that interest "shall be allowed on any money judgment in a civil case recovered in a district court," to "be calculated from the date of the entry of the judgment." 28 U.S.C. Sec. 1961 (1976). Where a district court judgment in favor of plaintiff is affirmed in whole or in part on appeal, the date of entry of the judgment referred to in section 1961 is the date on which the original judgment in favor of plaintiff was entered in the initial trial court proceeding and not the date of affirmance on appeal or the date of the judgment on remand. Perkins v. Standard Oil Co., 487 F.2d 672, 674 (9th Cir.1973) (interest allowed from date of prior judgment on portion of damages award affirmed on appeal); Kotsopoulos v. Astoria Shipping Co. S.A., 467 F.2d 91, 94 (2d Cir.1972) (interest allowed from date of prior judgment affirmed on appeal, even though plaintiff's appeal for higher award denied). But see Harris v. Chicago Great Western Railway Co., 197 F.2d 829 (7th Cir.1952) (interest allowed only from date of entry of judgment on remand and not from date of entry of earlier judgment, where amount of damages affirmed on appeal was less than the amount of damages in verdict, even though verdict formed basis of second judgment). Similarly, where a judgment for plaintiff is vacated on appeal but a judgment for plaintiff for the same amount of damages incurred during the same period is entered on remand, the date of entry of the judgment of section 1961 is the date on which the first judgment for plaintiff was entered in the trial court proceedings. Twin City Sportservice v. Charles O. Finley & Co., 676 F.2d 1291, 1311-12 (9th Cir.1982); Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394, 406 (9th Cir.1980); Lew Wenzel & Co. v. London Litho Supply Co., 563 F.2d 1367, 1369 (9th Cir.1977).

On the other hand, where a district court judgment in favor of defendant is reversed on appeal or a judgment in favor of plaintiff is vacated on appeal and, upon remand, a new trial is held resulting in a verdict and judgment for plaintiff, the date referred to in section 1961 is the date of the entry of the judgment after the new trial on remand. Ashland Oil, Inc. v. Phillips Petroleum Co., 607 F.2d 335, 336 (10th Cir.1979) (interest allowed only from date of entry of judgment on remand where new award of damages, based on "additional facts" determined on remand); Lew Wenzel, 563 F.2d at 1369 (interest allowed only from date of judgment on remand on attorneys' fee portion of damages awarded only on remand); Hysell v. Iowa Public Service Co., 559 F.2d 468, 476-77 (8th Cir.1977) (interest allowed only from date of judgment on remand where district court made new award of damages upon remand after earlier judgment vacated on appeal).

The proper operation of section 1961 is not immediately apparent in this case, where no new trial will be held on remand because a previous judgment n.o.v. has been vacated and the original verdict allowed to stand. Section 1961 does not state whether the "date of the entry of the judgment" referred to in the statute is the date of entry of the actual judgment upon which the plaintiff recovers its damages or the date upon which the plaintiff's judgment should have been entered had the district court not erroneously granted judgment n.o.v.

The Second Circuit, reasoning narrowly that "entry of the judgment" means entry of the actual judgment without which plaintiff could not recover against defendant, has construed section 1961 to permit allowance of interest only from the date of entry of judgment upon remand on the mandate of the court of appeals. Powers v New York Central Railroad Co., 251 F.2d 813, 818 (2d Cir.1958) (2-1 decision); Briggs v. Pennsylvania Railroad Co., 164 F.2d 21, 22 (2d Cir.1947), aff'd on other grounds, 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948).

In contrast, the Fifth Circuit has given section 1961 an "equitable" construction to allow interest to run from the date the judgment should have been entered on the verdict for plaintiff had no judgment n.o.v. been granted. The date of the verdict--not the date of entry of judgment for plaintiff after reversal of the judgment n.o.v. on appeal--has been held to be the controlling date. Louisiana & Arkansas Railway v. Pratt, 142 F.2d 847, 849 (5th Cir.1944). In support of its "equitable" construction of section 1961, the Pratt court noted that the Supreme Court itself, looking to the "equity" of the statute, had given the predecessor to section 1961 a broad interpretation so as to allow interest on a sum determined by the comptroller of the currency that had the certainty of a judgment but had not in fact been reduced to judgment and thus was not "within ... the letter" of the statute. 142 F.2d at 849 (describing National Bank v. Mechanics' National Bank, 94 U.S. 437, 439, 24 L.Ed. 176 (1876)). In Pratt, basing its reasoning on the "equity" of the statute suggested by the Supreme Court 68 years earlier, the Fifth Circuit construed section 1961 to permit interest from the date of the verdict for plaintiff, since that was the date judgment should have been entered "forthwith" on the verdict under Fed.R.Civ.P. 58. ² 142 F.2d at 849. See Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1048 (5th Cir.1970) (section 1961 interest allowed from date of jury verdict even though judgment entered 7 months later upon denial of motion for new trial, since jury instructed to calculate verdict as if plaintiff were "paid now in cash" on verdict day).

Our court has not directly addressed the question of the interpretation of section 1961 in the context of an erroneously granted judgment n.o.v. that is reversed on appeal. ³ In Equitable Life Assurance Society v. Trimble, 83 F. 85, 87 (9th Cir.1897), however, we held that "there was no error" when, subsequent to the return of verdict on January 16, 1897, in the amount of $8,318, the district court entered judgment on January 29, 1897, in the amount of $8,333 to account for 13 days of interest. While the legal basis for the district court's action is not indicated in Trimble and while the case does not directly involve a reversal and entry of a new judgment on remand, Trimble does suggest that the plaintiff should not properly bear the cost of the loss of use of the money judgment for the period between verdict and entry of judgment.

Seven decades later, without mentioning Trimble, but with a similar sense of the equities of the situation, we indicated strong approval of the Fifth Circuit approach. In Perkins v. Standard Oil Co., 487 F.2d 672, 676 (9th Cir.1973), we sustained the allowance of interest from the date of entry of an earlier judgment even though the size of the judgment was reduced on appeal and a new judgment entered on remand. We stated as an alternative ground for our holding that "interest should run from the date of entry of the original judgment because that is the date on which the correct judgment should have been entered." Id. Although Perkins is not dispositive of our case, it is in harmony with the Fifth Circuit approach.

The purpose of awarding interest to a party recovering a money judgment is, of course, to compensate the wronged person for being deprived of the monetary value of the loss from the time of the loss to the payment of the money judgment. Note, Interest on Judgments in the Federal Courts, 64 Yale L.J. 1019, 1019 (1955) (citing cases): see Young v. Godbe, 82 U.S. (15 Wall.) 562, 565, 21 L.Ed. 250 (1872); Kotsopoulos, 467 F.2d at 94; Powers, 251 F.2d at 819 (Lumbard, J., dissenting). A jury verdict or trial court decision in favor of plaintiff should ordinarily include, as part of the damages award, interest on the...