Zimmerman v. Mathews Trucking Corp.

• Decision Date: 14 August 1953
• Docket Number: No. 14693.,14693.
• Citation: Zimmerman v. Mathews Trucking Corp., 205 F.2d 837 (8th Cir. 1953)
• Parties: ZIMMERMAN v. MATHEWS TRUCKING CORP.
• Court: U.S. Court of Appeals — Eighth Circuit

205 F.2d 837 (1953)

ZIMMERMAN v.MATHEWS TRUCKING CORP.

No. 14693.

United States Court of Appeals Eighth Circuit.

August 14, 1953.

J. H. Lookadoo, Arkadelphia, Pa. (G. W. Lookadoo, Arkadelphia, Ark., on the brief), for appellant.

J. W. Barron, Little Rock, Ark.(Wootton, Land & Matthews, Hot Springs, Ark., Eugene A. Matthews and Rose, Meek, House, Barron & Nash, Little Rock, Ark., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

The District Court in this case granted the defendant(appellee) judgment notwithstanding a verdict for the plaintiff(appellant), but denied the defendant's alternative motion for a new trial.The plaintiff appealed.This Court reversed, and directed the reinstatement of the verdict and judgment for the plaintiff.203 F.2d 864, 868.The defendant in its brief had challenged, by cross assignments of error, the validity of the plaintiff's judgment and verdict and had asserted that if the judgment notwithstanding the verdict was reversed the defendant was entitled to a new trial.

The printed record on appeal did not show that the defendant had preserved for review alleged errors in the court's instructions relative to two fact issues.We said in our opinion that "The defendant did not ask at the trial that either of these issues be submitted to the jury, nor object to the court's failure to submit them."By a petition for rehearing, the defendant pointed out that the original or primary record on appeal showed that that statement was incorrect.We therefore eliminated that sentence from the opinion.

In the belief that the defendant, which was not in the position of a cross-appellant, could be heard only in support of the judgment from which the plaintiff had appealed and could not complain of the judgment on the verdict, this Court denied the defendant's petition for rehearing, in which the defendant asserted that it was entitled to a retrial of the case.¹Judge JOHNSEN questioned the correctness of that ruling.

The defendant, in a second petition for rehearing, has called our attention to a statement of the Supreme Court in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 254, 61 S.Ct. 189, 195, 85 L.Ed. 147, in which the proper procedure upon an appeal from a judgment notwithstanding a verdict entered pursuant to Rule 50(b) of the Federal Rules of Civil Procedure,28 U.S.C.A., was discussed.The court said:

"* * * The judgment on the verdict may still stand, because the appellate court may reverse the trial judge\'s action.This being so, we see no reason why the appellee may not, and should not, cross-assign error, in the appellant\'s appeal, to rulings of law at the trial, so that if the appellate court reverses the order for judgment n. o. v., it may pass on the errors of law which the appellee asserts nullify the judgment on the verdict."

Under the procedure outlined and approved by the Supreme Court in the Montgomery Ward case, it seems apparent that this Court, after having determined that the judgment appealed from by the plaintiff was a nullity, was required to consider whether the judgment in favor of the...