1. A defendant who moved the District Court successfully for
judgment
non obstante veredicto and who thereupon urged
that, because of the granting of the judgment, his alternative
motion (on other grounds) for a new trial had passed out of the
case, did not thereby elect to stand upon his motion for judgment
alone and abandon his right to have the motion for new trial
decided by the District Court should his judgment be reversed on
appeal. P.
311 U. S.
249.
2. Under Rule 50(b) of the Rules of Civil Procedure for the
District Courts, the granting of a motion for judgment
non
obstante veredicto does not effect an automatic denial of an
alternative motion for a new trial. Pp.
311 U. S.
249-250.
3. The provision of the rule that "A motion for a new trial may
be joined with this motion [for judgment
non obstante
veredicto,] or a new trial may be prayed for, in the
alternative" -- does not confine the trial judge to an initial
choice of disposing of either motion to the exclusion of the other.
P.
311 U. S.
251.
4. Rule 50(b) should be so administered as to accomplish all
that is permissible under its terms in avoidance of delay in
litigation. P.
311 U. S.
253.
5. Under Rule 50(b), where there is a motion for judgment
non obstante veredicto and in the alternative for a new
trial because of trial errors and matters appealing to the judge's
discretion, the judge should rule on the motion for judgment, and,
whatever the ruling thereon, should also rule on the motion for new
trial, indicating the grounds of his decision. If he grants
judgment
non obstante veredicto and denies a new trial,
the party who obtained the verdict may appeal from that judgment,
and the appellee may cross-assign error to rulings of law at the
trial, so that, if the appellate court reverses the order for
judgment
non obstante veredicto, it may pass on the errors
of law which the appellee asserts nullify the judgment on the
verdict. P.
311 U. S.
253.
6. Where the District Court granted judgment
non obstante
veredicto to the defendant, but failed to pass upon
defendant's motion in the alternative fr a new trial, and the
granting of the judgment
Page 311 U. S. 244
non obstante veredicto was adjudged erroneous and
reversed on appeal,
held, that in view of the novelty of
the procedure under Rule 50(b) and other circumstances, the cause
should be remanded to the District Court with directions to hear
and rule upon the motion for a new trial. P.
311 U. S.
254.
108 F.2d 848 modified.
Certiorari, 309 U.S. 650, to review a judgment of the court
below which reversed a judgment of the District Court for the
defendant entered
non obstante veredicto and remanded the
case with instructions to the District Court to enter judgment on
the verdict in favor of the plaintiff.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
In this case, we are called upon to determine the appropriate
procedure under Rule 50(b) of the Federal Rules of Civil Procedure.
[
Footnote 1]
Page 311 U. S. 245
To recover damages for personal injuries, respondent
(hereinafter spoken of as plaintiff) brought action against
petitioner (hereinafter spoken of as defendant), pursuant to an
Arkansas statute declaring that corporations should be liable for
injuries to an employee attributable to the negligence of a fellow
employe. The complaint alleged that the plaintiff, while in the
defendant's service, had been so injured. The answer denied the
plaintiff was an employee of the defendant; denied he was injured
in the manner described or by the negligence of his co-employee,
and set up assumption of risk. At the close of the evidence upon
the trial, the defendant moved for a directed verdict. The motion
was denied, and the jury returned a verdict for plaintiff on which
judgment was entered. Within ten days, the defendant filed its
written motion in the following form:
"Comes the defendant, Montgomery Ward & Company, and files
its motion praying that the jury's verdict herein and the judgment
rendered and entered thereon be set aside and judgment entered
herein for the defendant notwithstanding the verdict, and its
motion for a new trial in the alternative, and, as grounds
therefor, states:"
Thereunder, in heading A, it set out nine reasons in support of
the motion for judgment, four of which were general, to the effect
that the verdict was contrary to law, to the evidence, to the law
and the evidence, and that the court erred in refusing to direct a
verdict. Four challenged the sufficiency of the evidence as to
negligence, as to the existence of the employment relation,
Page 311 U. S. 246
and as to assumption of risk, to support the verdict. One dealt
with the preponderance of the evidence, and was therefore
inappropriate in support of the motion.
Under heading B, in support of the motion for a new trial, the
same reasons as were assigned for the other motion were, with an
immaterial exception, repeated, and additional reasons were added
to the effect that the damages were excessive, that the court erred
in ruling upon evidence, and in refusing to give requested
instructions.
The motion concluded thus:
"Wherefore, the defendant prays that the verdict of the jury
herein, and the judgment rendered and entered thereon, be set
aside, and a judgment rendered and entered herein in favor of the
defendant, and defendant further prays in the alternative that, in
the event the Court refuses to set aside the verdict rendered for
the plaintiff and the judgment in favor of the plaintiff rendered
and entered on said verdict, and refuses to render and enter
judgment herein in favor of the defendant notwithstanding said
verdict and judgment, that the court set aside said verdict and
judgment on behalf of the plaintiff and grant the defendant a new
trial herein."
The District Court rendered an opinion [
Footnote 2] holding that there was no evidence of
negligence on the part of the co-employee, and that therefore
judgment should be entered for the defendant.
The plaintiff filed a motion praying that, to limit the issues
on appeal, the court's order and judgment specifically show the
grounds on which relief was granted, and "in order that the
judgment of the appellate court may be final," the motion for a new
trial be overruled. The court, however, merely entered a judgment
for the defendant notwithstanding the verdict.
Page 311 U. S. 247
The plaintiff filed a second motion reciting that at a hearing
upon his earlier motion, the defendant had resisted the contention
that the court should rule on the motion for a new trial as that
motion "passed out of existence and consideration on the granting
of its motion for a judgment notwithstanding the verdict." The
plaintiff further recited that the court did not pass upon the
plaintiff's contentions, but simply entered a judgment in favor of
the defendant, and renewed his prayer that the court consider the
motion, modify the judgment to specify the grounds upon which
relief was granted, and dispose of all issues raised by both
motions. This was denied.
The plaintiff appealed to the Circuit Court of Appeals, which
decided that the District Court erred in holding the evidence
insufficient to make a case for a jury. It reversed the judgment
and remanded the cause with instructions to the District Court to
enter judgment on the verdict in favor of the plaintiff. [
Footnote 3] It overruled the
defendant's contention that the case should be remanded with leave
to the trial court to dispose of the motion for a new trial.
The importance of a decision by this court, respecting the
proper practice under Rule 50(b), and a conflict of decisions,
[
Footnote 4] moved us to grant
certiorari. 309 U.S. 650.
The Circuit Court of Appeals said:
"Strictly speaking the motion did not pray for relief in the
'alternative,' giving the court a choice between
Page 311 U. S. 248
two propositions either of which he might grant in the first
instance. The court was asked to rule on the motion for a new trial
only 'in the event' he 'refuses to set aside the verdict . . . and
judgment . . . and refuses to enter judgment herein in favor of the
defendant. . . .' The court having granted the prayer of the motion
as made did not err in not ruling on the motion for a new trial.
The condition on which the court was asked to grant a new trial did
not come into existence. The new rules are not intended to prolong
litigation by permitting litigants to try cases piecemeal. Their
purpose would not be accomplished if when relief is asked on
condition or, in the alternative, the successful party could on
reversal go back to the trial court and demand a ruling on his
conditional or alternative proposition. The order sustaining the
motion for judgment notwithstanding the verdict was equivalent to a
denial of the motion for a new trial, and the latter motion passed
out of the case upon the entry of the order."
The defendant contends that the rule continues the existing
practice respecting granting of new trials, and also regulates the
procedure for rendering judgment notwithstanding a verdict; that
the provision for an alternative motion for a new trial would be
meaningless and nugatory if the granting of the motion for judgment
operated automatically to dismiss it, since the bases of the two
motions are, or may be, different, and orderly procedure requires
that the court first rule on the motion for judgment, the granting
of which renders unnecessary a ruling upon the motion for a new
trial, which should be reserved until final disposition of the
former.
The plaintiff insists that the trial court is limited to a
choice of action on one motion or the other, but cannot rule upon
the motion for judgment and leave that for a new trial to be
disposed of only if judgment notwithstanding
Page 311 U. S. 249
the verdict is denied. He further asserts, in support of the
judgment below, that the uncontradicted allegations of his motion
in the District Court disclose that defendant elected to stand upon
its motion for judgment alone and that it cannot now repudiate the
position thus taken.
We shall consider the plaintiff's contentions in inverse
order.
1. While we took the case to review the Circuit Court's
construction of the rule, it is true that, if the defendant elected
to stand on its motion for judgment and, in effect, withdrew its
motion for a new trial, we do not reach the question involved in
our grant of certiorari. We are, however, unable to spell out any
such election or withdrawal. The motion for a new trial assigned
grounds not appropriate to be considered in connection with the
motion for judgment. It put forward claims that the verdict was
against the weight of the evidence and was excessive; that the
court erred in rulings on evidence and in refusing requested
instructions. An affirmative finding with respect to any of these
claims would have required a new trial, whereas none of them could
be considered in connection with the motion for judgment.
We think that, when the defendant urged upon the District Court
that it should not decide the motion for a new trial because it
passed out of existence and consideration on the granting of the
motion for judgment, all that defendant meant was that, having
granted the motion for judgment, the court had no occasion to pass
upon the reasons assigned in support of the motion for a new trial.
That would obviously have been true if no appeal had been taken
from the District Court's action or if that action had been
affirmed upon appeal.
2. We come then to the substantial question which moved us to
issue the writ, namely, whether, under Rule
Page 311 U. S. 250
50(b), the District Court's grant of the motion for judgment
effected an automatic denial of the alternative motion for a new
trial. We hold that it did not.
The rule was adopted for the purpose of speeding litigation and
preventing unnecessary retrials. It does not alter the right of
either party to have a question of law reserved upon the decision
of which the court might enter judgment for one party in spite of a
verdict in favor of the other. [
Footnote 5] Prior to the adoption of the rule, in order to
accomplish this, it was necessary for the court to reserve the
question of law raised by a motion to direct a verdict. [
Footnote 6] The practice was an
incident of jury trial at common law at the time of the adoption of
the Seventh Amendment to the Constitution. [
Footnote 7]
Rule 50(b) merely renders unnecessary a request for reservation
of the question of law or a formal reservation and, in addition,
regulates the time and manner of moving for direction and of moving
for judgment on the basis of the refusal to direct. It adds nothing
of substance to rights of litigants heretofore existing and
available through a more cumbersome procedure.
A motion for judgment notwithstanding the verdict did not, at
common law, preclude a motion for a new trial. [
Footnote 8] And the latter motion might be, and
often was, presented after the former had been denied. The rule was
not intended to alter the existing right to move for a new trial
theretofore recognized and confirmed by statute. [
Footnote 9] It permits the filing of a motion
for judgment
Page 311 U. S. 251
in the absence of a motion for a new trial or the filing of both
motions jointly or a motion for a new trial in the alternative.
Each motion, as the rule recognizes, has its own office. The
motion for judgment cannot be granted unless, as matter of law, the
opponent of the movant failed to make a case and therefore a
verdict in movant's favor should have been directed. The motion for
a new trial may invoke the discretion of the court insofar as it is
bottomed on the claim that the verdict is against the weight of the
evidence, that the damages are excessive, or that, for other
reasons, the trial was not fair to the party moving, and may raise
questions of law arising out of alleged substantial errors in
admission or rejection of evidence or instructions to the jury.
We are of opinion that the provision of the rule -- "A motion
for a new trial may be joined with this motion, or a new trial may
be prayed for, in the alternative," -- does not confine the trial
judge to an initial choice of disposing of either motion, the
exercise of which choice precludes consideration of the remaining
motion. We hold that the phrase "in the alternative" means that the
things to which it refers are to be taken not together, but one in
the place of the other. [
Footnote 10]
The rule contemplates that either party to the action is
entitled to the trial judge's decision on both motions, if both are
presented. A decision in favor of the moving party upon the motion
for judgment ends the litigation, and often makes it possible for
an appellate court to dispose of the case without remanding it for
a new trial. If, however, as in the present instance, the trial
court erred in granting the motion, the party against whom the
verdict went is entitled to have his motion for a new trial
considered in respect of asserted substantial trial errors
Page 311 U. S. 252
and matters appealing to the discretion of the judge. In this
case, the reasons assigned in support of the motion for a new trial
were in both categories. The grounds assigned for a new trial have
not been considered by the court. In the circumstances here
disclosed, the uniform practice in state appellate courts has been
to remand the case to the trial court with leave to pass upon the
motion for new trial. [
Footnote
11]
The plaintiff urges that, whereas the rule was intended to
expedite litigation, to prevent unnecessary trials, and to save the
time of courts and litigants, the course urged by the defendant
tends to extend the duration of litigation, to create unnecessary
hardship, and to defeat the purpose of the rule.
We are of opinion that the position is untenable. This case well
illustrates the efficacy of the procedure sanctioned by the rule.
In view of the trial judge's conclusion that the plaintiff failed
to make out a case for the jury, he would, under the earlier
practice, simply have
Page 311 U. S. 253
granted a new trial. Upon the new trial, the judge, if his view
as to the law remained unchanged, would have directed a verdict for
the defendant. The only recourse of the plaintiff would have been
an appeal from this second judgment. If the appellate court had
been of the view it here expressed, it would have reversed that
judgment and remanded the cause for a third trial. Upon such third
trial, if the trial court had ruled upon the evidence and given the
instructions to which the defendant objects, a judgment for the
plaintiff would have been the subject of a third appeal and, if the
defendant's position were sustained by the appellate court, the
cause would be remanded for a fourth trial at which proper rulings
would be rendered and proper instructions given.
Much of the delay formerly encountered may be avoided by
pursuing the course for which the defendant contends. But the
courts should so administer the rule as to accomplish all that is
permissible under its terms. Is it necessary, if the trial judge's
order for judgment be reversed on appeal, that only thereafter he
deal with the alternative motion? If so, and he then refuses to set
aside the original judgment, a second appeal will lie -- not from
his order denying a new trial, for that order, save in most
exceptional circumstances, is not appealable, [
Footnote 12] but from the judgment entered on
the verdict, for errors of law committed on the trial. Can such a
second appeal be avoided in the interest of speeding litigation? We
think so.
If alternative prayers or motions are presented, as here, we
hold that the trial judge should rule on the motion for judgment.
Whatever his ruling thereon, he should also rule on the motion for
a new trial, indicating the grounds of his decision. If he denies a
judgment
n.o.v. and also denies a new trial the judgment
on the verdict stands, and the losing party may appeal
Page 311 U. S. 254
from the judgment entered upon it, assigning as error both the
refusal of judgment
n.o.v. and errors of law in the trial,
as heretofore. [
Footnote 13]
The appellate court may reverse the former action and itself enter
judgment
n.o.v., or it may reverse and remand for a new
trial for errors of law. If the trial judge, as he did here, grants
judgment
n.o.v. and denies the motion for a new trial, the
party who obtained the verdict may, as he did here, appeal from
that judgment. Essentially, since his action is subject to review,
the trial judge's order is an order
nisi. 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. [
Footnote 14]
Should the trial judge enter judgment
n.o.v. and, in
the alternative, grant a new trial on any of the grounds assigned
therefor, his disposition of the motion for a new trial would not
ordinarily be reviewable, [
Footnote 15] and only his action in entering judgment
would be ground of appeal. If the judgment were reversed, the case,
on remand, would be governed by the trial judge's award of a new
trial.
We might reverse and direct that the cause be remanded to the
District Court to pass on both motions.
Page 311 U. S. 255
But that course would, in the circumstances, be neither fair nor
practical. As respects federal courts, the procedure permitted by
the rule is novel. The provision which is involved in this case
substantially follows the first state statute to authorize such
procedure. [
Footnote 16] The
Supreme Court of that State has construed the statute to permit the
trial judge to pass on the motion for judgment, leaving the motion
for a new trial for later disposition. In the event that his
decision is reversed, the practice is to remand the cause with
leave to the trial judge to pass upon the motion for a new trial.
[
Footnote 17] It was
therefore not unnatural for the defendant to advocate that course,
or for the trial judge to follow it.
In the circumstances, we think the failure of the District Court
to rule in the alternative on both matters can be cured without
depriving the defendant of opportunity to have its motion for a new
trial heard and decided by the trial court, by modifying the
judgment below to provide that the cause be remanded to the
District Court to hear and rule upon that motion.
Modified.
[
Footnote 1]
308 U.S. Appendix, p. 63; U.S.C. Tit. 28, following section 723
c. addendum.
"Whenever a motion for a directed verdict made at the close of
all the evidence is denied or for any reason is not granted, the
court is deemed to have submitted the action to the jury subject to
a later determination of the legal questions raised by the motion.
Within 10 days after the reception of a verdict, a party who has
moved for a directed verdict may move to have the verdict and any
judgment entered thereon set aside and to have judgment entered in
accordance with his motion for a directed verdict; or, if a verdict
was not returned such party, within 10 days after the jury has been
discharged, may move for judgment in accordance with his motion for
a directed verdict. A motion for a new trial may be joined with
this motion, or a new trial may be prayed for, in the alternative.
If a verdict was returned, the court may allow the judgment to
stand or may reopen the judgment and either order a new trial or
direct the entry of judgment as if the requested verdict had been
directed. If no verdict was returned. the court may direct the
entry of judgment as if the requested verdict had been directed or
may order a new trial."
[
Footnote 2]
27 F. Supp. 4.
[
Footnote 3]
108 F.2d 848, 853.
[
Footnote 4]
Pruitt v. Hardware Dealers Mutual Fire Ins. Co., 112
F.2d 140;
Pessagno v. Euclid Investment Co., Inc., 112
F.2d 577. Other cases cited seem not to have raised the precise
question here presented.
Leader v. Apex Hosiery Co., 108
F.2d 71,
aff'd, 310 U. S. 310 U.S.
469;
Massachusetts Protective Assn. v. Mouber, 110 F.2d
203;
Lowden v. Denton, 110 F.2d 274;
Reliance Life
Ins. Co. v. Burgess, 112 F.2d 234;
Ferro Concrete
Construction Co. v. United States, 112 F.2d 488;
Williams
v. New Jersey-New York Transit Co., 113 F.2d 649;
Southern
Ry. Co. v. Bell, 114 F.2d 341.
[
Footnote 5]
Compare Slocum v. New York Life Ins. Co., 228 U.
S. 364,
with Baltimore & C. Line v. Redman,
295 U. S. 654.
[
Footnote 6]
Baltimore & C. Line v. Redman, supra, 295 U. S.
659.
[
Footnote 7]
Ibid., 295 U. S.
660.
[
Footnote 8]
Thompson, Trials, (2d) Ed. § 2726;
Brannon v. May, 42
Ind. 92;
Stone v. Hawkeye Ins. Co., 68 Iowa 737, 28 N.W.
47;
Tomberlin v. Chicago, St.P., M. & O. Ry. Co., 211
Wis. 144, 148, 246 N.W. 571, 248 N.W. 121.
[
Footnote 9]
See Rule 59(a) U.S.C. 723c addendum;
cf.
Judicial Code § 269, as amended, 28 U.S.C. § 391.
[
Footnote 10]
The word "alternative" may be used properly in this sense.
See Webster's International Dictionary, Second
Edition.
[
Footnote 11]
Bryan v. Inspiration Consol. Copper Co., 24 Ariz. 47,
206 P. 402;
Estate of Caldwell, 216 Cal. 694, 16 P.2d 139;
Hayden v. Johnson, 59 Ga. 104;
Chicago & N.W. Ry.
Co. v. Dimick, 96 Ill. 42;
Daniels v. Butler, 175
Iowa, 439, 155 N.W. 1013;
Linker v. Union Pac. R. Co., 87
Kan. 186, 123 P. 745;
Cummins' Estate, 271 Mich. 215, 259
N.W. 894;
Kies v. Searles, 146 Minn. 359, 178 N.W. 811;
Central Metropolitan Bank v. Fidelity & Casualty Co.,
159 Minn. 28, 198 N.W. 137;
Wegmann v. Minneapolis St. Ry.
Co., 165 Minn. 41, 205 N.W. 433;
Trovatten v. Hanson,
171 Minn. 130, 213 N.W. 536;
Fisk v. Henarie, 15 Or. 89,
13 P. 760;
Osche v. New York L.I. Co., 324 Pa. 1, 187 A.
396;
Altomari v. Kruger, 325 Pa. 235, 188 A. 828;
Raske v. Northern Pac. Ry. Co., 74 Wash. 155, 132 P. 865;
McLain v. Easley, 146 Wash. 377, 262 P. 975, 264 P. 714.
Statutory provisions or rules render it possible in some states to
bring the grounds for new trial or the action of the trial court on
the motion for new trial before the appellate court.
See Peters
v. Aetna L.I. Co., 282 Mich. 426, 276 N.W. 504; Kauders v.
Equitable Life Assurance Society,
299 Ill.App. 152, 19 N.E.2d
630; Dochtermann Van & Express Co. v. Fiss, Doerr & Carroll
Horse Co., 155 App.Div. 162, 140 N.Y.S. 72.
[
Footnote 12]
See Fairmount Glass Works v. Cub Fork Coal Co.,
287 U. S. 474,
287 U. S.
481-485.
[
Footnote 13]
Hall v. Weare, 92 U. S. 728,
92 U. S.
732.
[
Footnote 14]
This procedure is prescribed under a statute and a supplementary
court rule in Michigan;
Peters v. Aetna Life Ins. Co., 282
Mich. 426, 276 N.W. 504, and perhaps is indicated in Wisconsin in
the absence of statute or formal rule:
Tomberlin v. Chicago,
St. P., M. & O. R. Co., 211 Wis. 144, 149, 246 N.W. 571,
248 N.W. 121.
[
Footnote 15]
United States v. Young, 94 U. S.
258;
Young v. United States, 95 U. S.
641;
Phillips v. Negley, 117 U.
S. 665,
117 U. S. 671;
Hume v. Bowie, 148 U. S. 245;
Fairmount Glass Works v. Cub Fork Coal Co., supra.
[
Footnote 16]
2 Mason's Minnesota Statutes (1927) § 9495.
[
Footnote 17]
See the Minnesota cases cited in
note 11