Wagner v. Burlington Industries, Inc., No. 19748-9.
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | WEICK, PECK and BROOKS, Circuit |
| Citation | 423 F.2d 1319 |
| Parties | Mrs. Carrie WAGNER, Plaintiff-Appellee, v. BURLINGTON INDUSTRIES, INC., d/b/a Volunteer Textiles, Defendant-Appellant. Mrs. Carrie WAGNER, Plaintiff-Cross-Appellant, v. BURLINGTON INDUSTRIES, INC., d/b/a Volunteer Textiles, Defendant-Cross-Appellee. |
| Docket Number | No. 19748-9. |
| Decision Date | 08 April 1970 |
423 F.2d 1319 (1970)
Mrs. Carrie WAGNER, Plaintiff-Appellee,
v.
BURLINGTON INDUSTRIES, INC., d/b/a Volunteer Textiles, Defendant-Appellant.
Mrs. Carrie WAGNER, Plaintiff-Cross-Appellant,
v.
BURLINGTON INDUSTRIES, INC., d/b/a Volunteer Textiles, Defendant-Cross-Appellee.
Nos. 19748-9.
United States Court of Appeals, Sixth Circuit.
April 8, 1970.
David S. Haynes, Bristol, Tenn., on brief for plaintiff-cross-appellant; Curtin, Haynes, Winston, Caldwell & Johnson, Bristol, Tenn., of counsel.
Ernest F. Smith, Kingsport, Tenn., for defendant-cross-appellee; S. Morris Hadden, Kingsport, Tenn., on the brief; Hunter, Smith, Davis, Norris, Waddey & Treadway, Kingsport, Tenn., of counsel.
Before WEICK, PECK and BROOKS, Circuit Judges.
WEICK, Circuit Judge.
Carrie Wagner sued Burlington Industries, Inc. (Burlington) in the District Court to recover damages for personal injuries and damages to her property allegedly resulting from the defendant's maintenance of a private nuisance on its premises. Burlington's textile mill was located about a half block away from her home. Defendant installed in its mill "high speed looms" in April, 1965. Mrs. Wagner alleged that the operation of these "high speed looms" caused vibrations which resulted not only in damage to her home but also in personal injury to her. Jurisdiction was based on diversity of citizenship.
The case was tried to a jury which found that Burlington maintained a temporary nuisance on its premises; that Mrs. Wagner did not sustain any personal injury, but that her property was damaged in the amount of $6,400, for which amount it returned a verdict in her favor. Burlington moved for judgment notwithstanding the verdict, or in the alternative, for a new trial. The District Court denied the motion for judgment notwithstanding the verdict and denied the motion for a new trial on the issue of liability, but granted a new trial solely on the issue of property damage. The Court found that the jury award of $6,400 was grossly excessive1 and that the jurors either were influenced by prejudice or passion, or acted in reckless disregard of the Court's instructions. The Court reserved for retrial only the issue of damages.
Burlington appealed from the denial of its motion for judgment notwithstanding the verdict, and from the denial of its motion for a new trial on the issue of liability. Mrs. Wagner appealed from the order of the District Court granting a new trial on the issue of damages2 contending that the jury verdict of $6,400 should be reinstated, or a
This Court is bound, however, to inquire into its jurisdiction to entertain an appeal, even though the question is not raised by the parties. Douglas v. Union Carbide Corp., 311 F.2d 182, 185 (4th Cir. 1962); City of Louisa v. Levi, 140 F.2d 512, 513 (6th Cir. 1944).
The issue before us is whether the District Court's judgment for the plaintiff on the issue of liability and the ordering of a new trial on the issue of damages is a final appealable order.
We are of the opinion that it is not an appealable decision.
Title 28 U.S.C. § 1291 provides:
"The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States * * * except where a direct review may be had in the Supreme Court."
It is settled that an appeal does not lie from an order granting a new trial. Ford Motor Co. v. Busam Motor Sales, Inc., 185...
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U.S. v. Gonzales, Nos. 97-2064
...result in the defendant's use of those witnesses at trial. The danger in disclosing this type of information was manifest in Marshall, 423 F.2d at 1319, where the government learned of the existence of a witness who ultimately testified against the defendant only because the district court ......
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Rothman v. U.S., No. 74-1240
...criminal conviction. But Cf. Fed.R.App.P. 4(b). See also Lapiczak v. Zaist, 451 F.2d 79, 80 (2d Cir. 1971); Wagner v. Burlington Indus., 423 F.2d 1319, 1321 (6th Cir. 1970); Vine v. Beneficial Finance Co., 374 F.2d 627, 632 (2d Cir. 27 Since we are not able to determine whether this Court h......
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Wood v. Holiday Inns, Inc., No. 74-1753
...jurisdiction to consider a decision which was not a final judgment as to all of the parties. See Wagner v. Burlington Industries, Inc., 423 F.2d 1319 (6th Cir. Briefs were then submitted on the question of jurisdiction and the case was subsequently remanded for certification by the district......
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Hellerstein v. Mr. Steak, Inc., No. 75--1087
...5. Alabama Labor Counsel Public Employees Locan 1279 v. Alabama, 453 F.2d 922 (5th Cir. 1972); Wagner v. Burlington Industries, Inc., 423 F.2d 1319 (6th Cir. 1970); and Milbert v. Bison Laboratories, Inc., 260 F.2d 431 (3d Cir. 1958). Accordingly, we are without jurisdiction under 28 U.S.C.......
-
U.S. v. Gonzales, Nos. 97-2064
...result in the defendant's use of those witnesses at trial. The danger in disclosing this type of information was manifest in Marshall, 423 F.2d at 1319, where the government learned of the existence of a witness who ultimately testified against the defendant only because the district court ......
-
Rothman v. U.S., No. 74-1240
...criminal conviction. But Cf. Fed.R.App.P. 4(b). See also Lapiczak v. Zaist, 451 F.2d 79, 80 (2d Cir. 1971); Wagner v. Burlington Indus., 423 F.2d 1319, 1321 (6th Cir. 1970); Vine v. Beneficial Finance Co., 374 F.2d 627, 632 (2d Cir. 27 Since we are not able to determine whether this Court h......
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Wood v. Holiday Inns, Inc., No. 74-1753
...jurisdiction to consider a decision which was not a final judgment as to all of the parties. See Wagner v. Burlington Industries, Inc., 423 F.2d 1319 (6th Cir. Briefs were then submitted on the question of jurisdiction and the case was subsequently remanded for certification by the district......
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Hellerstein v. Mr. Steak, Inc., No. 75--1087
...5. Alabama Labor Counsel Public Employees Locan 1279 v. Alabama, 453 F.2d 922 (5th Cir. 1972); Wagner v. Burlington Industries, Inc., 423 F.2d 1319 (6th Cir. 1970); and Milbert v. Bison Laboratories, Inc., 260 F.2d 431 (3d Cir. 1958). Accordingly, we are without jurisdiction under 28 U.S.C.......