Opinion · Supreme Court of the United States

Johnson v. New York, New Haven & Hartford Railroad

344 U.S. 48

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1952-11-17
Topic
general

How later courts describe this case

  • holding that failure to move for judgment after verdict entitled party "only to a new trial, not a judgment in its favor"
  • holding that failure to move for judgment n.o.v. pursuant to Rule 50(b) deprives the appellate court of power to order entry of judgment
  • holding that in the absence of a motion for judgment notwithstanding verdict, an appellate court cannot enter such judgment
  • holding that a party’s failure to file a Rule 50(b
  • “Rewriting [Rule 50(b)] to fit counsel’s unexpressed wants and intentions would make it easy to reintroduce the same type of confusion and uncertainty the rule was adopted to end.”
  • “Rewriting the rule to fit counsel’s unexpressed wants and intentions would make it easy to reintroduce the same type of confusion and uncertainty the rule was adopted to end.”
  • absent a timely motion for judgment notwithstanding the verdict in the trial court, neither the trial court nor an appellate court could enter such judgment
  • "Respondent made a motion to set aside the verdict and for new trial within the time required by Rule 50(b). It failed to comply with permission given by 50(b

Citator

UpLaw has not yet analyzed Johnson v. New York, New Haven & Hartford Railroad. The absence of a flag is not a finding that it is good law.

Cited by
210 opinions

Headnotes

  1. Civil Procedure — Judgment Notwithstanding the Verdict Under Rule 50(b) of the Federal Rules of Civil Procedure, neither the trial judge nor an appellate court may enter judgment notwithstanding the verdict in the absence of a motion for such judgment made in the trial court within ten days after reception of the verdict; a party who fails to make that timely motion is not entitled to such a judgment. 344 U.S. at 50
  2. Civil Procedure — Motion to Set Aside Verdict A post-verdict motion to set aside the verdict cannot be treated as a motion for judgment notwithstanding the verdict based on the movant's unexpressed intentions or hopes; the motion must be treated as what it actually was, and the opposing party's opportunity to remedy shortcomings in her case may not be jeopardized by a failure to divine counsel's unspoken wishes. 344 U.S. at 50-51
  3. Civil Procedure — Judgment as a Matter of Law A trial judge's express reservation of decision on a motion for a directed verdict does not relieve a party of the duty under Rule 50(b) to move for judgment notwithstanding the verdict within ten days after reception of the verdict; the rule itself makes the reservation automatic, and a timely post-verdict application for judgment remains an essential requirement grounded in fairness. 344 U.S. at 51-54
  4. Civil Procedure — New Trial A party that timely moved to set aside the verdict and for a new trial but failed to move for judgment notwithstanding the verdict is entitled only to a new trial, not to a judgment in its favor. 344 U.S. at 54
JOHNSONv. NEW YORK, N. H. H.R. CO.,344 U.S. 48(1952)
73 S.Ct. 125
JOHNSON, ADMINISTRATRIX,v. NEW YORK, NEW HAVEN HARTFORD RAILROAD CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 40.
Argued October 23-24, 1952.
Decided November 17, 1952.
At the close of the evidence in a suit in a federal district court under the Jones Act for wrongful death, defendant moved to dismiss the complaint and for a directed verdict in its favor. The court reserved decision on the motion and submitted the case to the jury. A verdict was returned for plaintiff and judgment was entered thereon. Within ten days after reception of the verdict, defendant moved to have it set aside, but did not move for judgment notwithstanding the verdict. The court denied plaintiff's motion to set aside the verdict and denied the pre-verdict motions for dismissal and for a directed verdict. On appeal, the Court of Appeals held that the motion for a directed verdict should have been granted and reversed the judgment of the district court.Held:Under Rule50(b) of the Federal Rules of Civil Procedure, the Court of Appeals could not direct entry of a judgment for defendant notwithstanding the verdict. Pp. 49-54.
(a) In the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of the verdict, Rule 50(b) forbids the trial judge or an appellate court to enter such a judgment. P. 50.
(b) Defendant's motion to set aside the verdict cannot be treated as a motion to enter judgment notwithstanding the verdict. Pp. 50-51.
(c) The trial judge's express reservation of decision on the motion for a directed verdict did not relieve defendant from the duty under Rule 50(b) to make a motion after the verdict for judgment notwithstanding the verdict. Pp. 51-54.
(d) Defendant is entitled only to a new trial, not to a judgment in its favor. P. 54.
194 F.2d 194, judgment vacated and cause remanded.
In a suit under the Jones Act, 46 U.S.C. § 688, for
wrongful death, the District Court rendered judgment for
the plaintiff. The Court of Appeals reversed.194 F.2d 194.
Page 49
This Court granted certiorari.343 U.S. 975.
Judgment vacated and cause remanded, p. 54.
Jacquin Frankargued the cause for petitioner. With him on the brief wasHerman B. Gerringer.Robert M. Peetargued the cause for respondent. With him on the brief wasEdward R. Brumley.
MR. JUSTICE BLACK delivered the opinion of the Court.
This case raises questions concerning the power of a Court of Appeals to render judgment for a defendant instead of merely ordering a new trial after it has set aside a jury verdict and trial court judgment for a plaintiff.

The petitioner sued the respondent railroad under the Jones Act, 46 U.S.C. § 688, for wrongful death of her husband. When the evidence was all in, the railroad moved to dismiss the complaint and also asked for a directed verdict in its favor on the grounds that no negligence had been proven and that the deceased had been responsible for his own death. The trial court reserved decision on the motion, submitted the case to the jury, a verdict of $20,000 was returned for petitioner, and judgment was entered on the verdict. Within ten days after reception of the verdict the railroad moved to have the verdict set aside on the ground that it was excessive, contrary to the law, to the evidence, to the weight of the evidence. More than two months later this motion was denied; in the same order denying that motion the court also denied the pre-verdict motions for dismissal and for a directed verdict on which action had been reserved prior to verdict. Holding that the motion for a directed verdict should have been granted, the Court of Appeals reversed.194 F.2d 194. Both parties agree that this reversal requires the District Court to enter judgment for the railroad notwithstanding the verdict,Page 50thereby depriving petitioner of another trial. Whether the Court of Appeals could direct such a judgment consistently with Rule50(b) of the Federal Rules of Civil Procedure1is the single question we granted certiorari to review.343 U.S. 975.

On several recent occasions we have considered Rule 50(b). We have said that in the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of a verdict the rule forbids the trial judge or an appellate court to enter such a judgment.Conev.West Virginia PulpPaper Co.,330 U.S. 212. We repeated that construction of the rule inGlobe Liquor Co. v.San Roman,332 U.S. 571, and reemphasized it inFountainv.Filson,336 U.S. 681.

Although this respondent made several motions it did not as the rule requires move within ten days after verdict "to have judgment entered in accordance with his [its] motion for a directed verdict." We are told, however, in respondent's brief that its motion to set aside the verdict "was intended to be a motion for judgment in its favor or for a new trial" and that "[o]bviously respondent did not merely want the verdict to be set aside but wanted the relief that invariably follows such a setting aside on the grounds urged: a judgment in its favor or a newPage 51trial." The defect in this argument is that respondent's motions cannot be measured by its unexpressed intention or wants. Neither the trial judge nor the Court of Appeals appears to have treated the motion to set aside the verdict as asking for anything but that. And surely petitioner is not to have her opportunity to remedy any short-comings in her case jeopardized by a failure to fathom the unspoken hopes of respondent's counsel. Respondent's motion should be treated as nothing but what it actually was, one to set aside the verdict — not one to enter judgment notwithstanding the verdict.

Respondent separately argues that a trial judge's express reservation of decision on motion for a directed verdict relieves a party from any duty whatever under 50(b) to make a motion for judgment after verdict. This contention not only flies in the teeth of the rule's unambiguous language but if sustained would undermine safeguards for litigants some of which have been pointed out in prior cases. The rule carefully sets out the steps and procedures to be followed by the parties as a pre-requisite to entry of judgments notwithstanding an adverse jury verdict.Montgomery Ward Co. v.Duncan,311 U.S. 243,250. It was adopted following confusion in this field brought about in part by three cases decided by this Court,Slocumv.New York Life Ins. Co.,228 U.S. 364;Baltimore Carolina Line, Inc. v.Redman,295 U.S. 654; andAetna Ins. Co. v.Kennedy,301 U.S. 389. TheSlocumcase was understood to hold that the Seventh Amendment forbade United States courts to enter judgments in favor of one party after jury verdict in favor of the other. TheRedmancase tried in New York held that the Seventh Amendment did not forbid entry of judgment notwithstanding a verdict where, prior to the verdict, the trial judge, following New York procedure, had expressly reserved his decision on a motion for a directed verdict. The New York District Court was authorizedPage 52to follow this state practice because of the Conformity Act, R. S. (1878) § 914. Thus theRedmancase did not purport to adopt New York procedure for the general guidance of federal courts. Later theKennedycase cast doubt on theRedmanholding, at least as to its scope. In theKennedycase plaintiff's request for directed verdict had not been followed by a timely motion for judgment notwithstanding the verdict as required by Pennsylvania law. Failure to conform to this Pennsylvania practice was a reason given by this Court for finding lack of power in the District Court to enter judgment contrary to the verdict.2

Rule 50(b) was designed to provide a precise plan to end the prevailing confusion about directed verdicts and motions for judgments notwithstanding verdicts. State procedure was no longer to control federal courts as it had in theRedmanandKennedycases. Federal courts were to be guided by this new rule, which provided its own exclusive procedural program. It rejected the New York procedure applied in theRedmancase, which permitted judgment to be set aside even though no motion to do so had been filed after verdict. Instead it approached more closely the Pennsylvania rule, reliedPage 53on in theKennedycase, under which judgments contrary to verdicts would not be awarded in the absence of specific timely motions for them. But Rule 50(b) departed from the New York and Pennsylvania procedures by making it wholly unnecessary for a judge to make an express reservation of his decision on a motion for directed verdict. The rule itself made the reservation automatic. A court is always "deemed to have submitted the action to the jury subject to a later determination" of the right to a directed verdict if a motion for judgment notwithstanding the verdict is made "within 10 days after the reception of a verdict . . . ." This requirement of a timely application for judgment after verdict is not an idle motion. This verdict solves factual questions against the post-verdict movant and thus emphasizes the importance of the legal issues. The movant can also ask for a new trial either for errors of law or on discretionary grounds. The requirement for timely motion after verdict is thus an essential part of the rule, firmly grounded in principles of fairness. SeeConev.West Virginia Pulp Paper Co., supra, at 217-218. Poor support for its abandonment would be afforded by the mere fact that a judge makes an express reservation of a decision which the rule reserves regardless of what the judge does.

Rule 50(b) as written and as construed by us is not difficult to understand or to observe. Rewriting the rule to fit counsel's unexpressed wants and intentions would make it easy to reintroduce the same type of confusion and uncertainty the rule was adopted to end. In 1946 this Court was asked to adopt an amendment to the rule which would have given appellate courts power to enter judgments for parties who, like this respondent, had made no timely motion for judgment notwithstanding the verdict. We did not adopt the amendment then. 5 Moore, Federal Practice (2d ed. 1951), ¶¶ 50.01 [7], 50.01 [9], 50.11.Page 54No sufficiently persuasive reasons are presented why we should do so now under the guise of interpretation.

Respondent made a motion to set aside the verdict and for new trial within the time required by Rule 50(b). It failed to comply with permission given by 50(b) to move for judgmentn. o. v. after the verdict. In this situation respondent is entitled only to a new trial, not to a judgment in its favor. The judgment of the Court of Appeals is vacated and the cause is remanded to it for further proceedings consistent with this opinion.3It is so ordered.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE JACKSON, MR. JUSTICE BURTON and MR. JUSTICE MINTON join, dissenting.
If the Court's opinion in this case merely disposed of a particular litigation by finding error in a decision of thePage 55Court of Appeals that a judgment be entered for the defendant in a negligence suit, an expression of dissent, let alone a dissenting opinion, would not be justified. If that were all there were to it, neither would the Court have been justified in granting the petition for certiorari. The same considerations which made the case one of general importance for review here make it appropriate to spell out the grounds of dissent.

Not the least important business of this Court is to guide the lower courts and the Bar in the effective and economical conduct of litigation. That is what is involved in this case. The immediate issue is the construction of one of the important Rules of Civil Procedure. That construction in turn depends upon our basic attitude toward those Rules — whether we take their force to lie in their very words, treating them as talismanic formulas, or whether we believe they are to be applied as rationalPage 56instruments for doing justice between man and man in cases coming before the federal courts.

Our concern is with Rule50(b) of the Federal Rules of Civil Procedure.1The Rules became effective on September 16, 1938. Two years later, inMontgomeryWard Co. v.Duncan,311 U.S. 243, this Court was called upon to determine the appropriate procedure under Rule 50(b). To do so, the Court had to consider the experience that led to the promulgation of the Rule. Its aim was to speed litigation without prejudicing the legitimate interests of litigants; to see to it that full and fair consideration is given to the issues litigants raise but that litigation does not become a socially wasteful game. The unanimous opinion of the Court in theMontgomery Wardcase gave this guiding direction: ". . . the courts should so administer the rule as to accomplish all that is permissible under its terms."311 U.S., at 253. This attitude was made specific by the statement that if the trial judge rules, as he properlyPage 57should, on alternative motions for judgmentn. o. v. and for a new trial, and denies them both, the appellate court may reverse the former action and direct the entry of judgmentn. o. v.311 U.S., at 254.

Subsequent toMontgomery Ward Co. v.Duncan,supra, three cases came here in which we reversed because Courts of Appeals disregarded the procedure outlined in that case in one significant respect. The Courts of Appeals directed the entry of judgmentsn. o. v. although no motions for such judgments had been made in the trial courts.Conev.West Virginia Pulp Paper Co.,330 U.S. 212;Globe Liquor Co. v.San Roman,332 U.S. 571;Fountainv.Filson,336 U.S. 681. Our decisions do not suggest, however, that the party in whose favor a Court of Appeals directs a judgmentn. o. v. is required to use a ritualistic formula in the District Court. The only relevant inquiry in this case, therefore, is whether the fair meaning of the proceedings after a verdict was rendered in fact constituted disposition of a motion to enter judgmentn. o. v. This is so unless Rule 50(b) commands that after the reception of a verdict a party must not only "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," but must do so by a particular form of words. The Rule does not require this. Nothing in the Rule, either by its terms or its origin, requires some abracadabra of obedience to it.

A comparison of the facts in theCone, GlobeandFountaincases with those in this case leaves no doubt that this case has nothing in common withCone, GlobeandFountain. A tabular analysis of the procedural facts in all four cases is appended,post, p. 63. There were no motionsn. o. v. inCone, GlobeandFountain, and the failure to make them resulted in a prejudice to the losingPage 58parties in the Courts of Appeals in those three cases which is wholly wanting here.2

In each of the three earlier cases the decision of the Court of Appeals either applied to the facts a legal theory other than the one on which the parties proceeded in the trial court, or for the first time assigned decisive importance to the choice by the losing party of a legal theory on which to claim or resist recovery.Conewas tried on the assumption that proof of constructive possession would sustain the cause of action; the Court of Appeals definitively disposed of the litigation by holding that actual possession must be proved. InGlobethe plaintiff secured a verdict on the basis of an express warranty in a sale; the Court of Appeals held that he had failed in this and directed the entry of a judgment for the seller, even though on a new trial, which alone was what the seller had asked, it would have been open for the buyer, with the aid of additional evidence, to succeed on proof of an implied warranty. InFountainthe plaintiff sued to have himself declared the beneficiary of a resultingPage 59trust in certain realty. While the Court of Appeals agreed with the District Court that New Jersey law precluded the imposition of such a resulting trust, it directed the District Court to enter a personal money judgment for the plaintiff. In all three cases we held that the District Court never had opportunity to exercise the discretion which would have been open to it had the grounds on which the litigation went off in the Court of Appeals been relied on before the District Court in an appropriate motion.

In this case there was no such deviation from the trial issues. The case went to the jury on the issues of defendant's negligence in departing from an alleged common custom, and of causation. These issues were duly pressed before the trial judge after verdict. The case went against the petitioner in the Court of Appeals on one of them. In contrast to the situation in the other three cases no possible claim of surprise can here find nourishment. TheCone, GlobeandFountaincases, being decisively different from this case, cannot govern it.

Let me set out, side by side, so much as is pertinent in the motion made after the verdict in theMontgomeryWardcase and the motion made in this case.Montgomery WardJohnson

Comes the defendant, On behalf of the defendant, Montgomery Ward Company, The New York, New and files its motion Haven Hartford Railroad, praying that the jury's verdict I move to set aside herein and the judgment the verdict on the ground 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:Page 60Montgomery WardJohnson

A. . . . Motion . . . to enter judgment . . . .

1. That the verdict is that it is contrary to the contrary to the law. law

2. That the verdict is and contrary to the evidence contrary to the evidence.

3. That the verdict is contrary to the law and evidence.

. . . . .

8. That the defendant and contrary to the weight has failed to prove by a of the evidence preponderance of the evidence . . . .

B. . . . motion for a new trial: [Specifications 1-8 same as above.]

9. That the damages and excessive. found by the jury and the verdict based thereon were excessive.3

The difference between the two motions is nil. One was written and formally labelled and detailed. While the other was oral, it was cast in form familiar to New York practitioners and its meaning was no less clear. The District Judge's action demonstrates this. But under the Court's holding it is no longer sufficient to move for a directed verdict and then, within the time provided by the Rule, ask the trial judge either to grant judgment or a new trial. The Court so holds even though the trial judge already has expressly stated he has reserved for his consideration at that time (after verdict) the very issue which a motion for judgmentn. o. v. would repeat. ThePage 61obvious, which is left unsaid in colloquies between counsel and the court, must now be spoken. The redundant, omitted out of respect for a judge's intelligence and professional competence, must always be spelled out. The parties must be sure to indulge the ancient weakness of the law for stylized repetition, and it is necessary that the judge answer the same question twice before his answer is to be recognized. In this way do we conduce "to the efficiency and the economy of the administration of justice." Federal Rules of Civil Procedure, Proceedings of the Institute at Washington, D.C. and of the Symposium in New York City, 87 (1938) (Chesnut, J.).

If on that fateful Friday the 13th, in April, 1951, sometime shortly after 10:30 in the morning when the jury's verdict was opened, the defendant had prefaced his argument by saying, "Your Honor, before addressing myself to my pending motion for directed verdict, on which your Honor reserved decision, and which of course now necessarily is a motion for judgmentn. o. v., I first want to renew that motion," he would have avoided today's decision against him, although he would not have added one jot of information to that of counsel for the plaintiff or of the judge regarding the issues before the court for decision. To require this is to make Rule 50(b) read (added language in italics):
"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.Such a motion will be treated as a motionto have judgment entered in accordance withhis motion for a directed verdict if he repeats themotion for directed verdict or states to the courtthat he now makes a `motion for judgment notwithstandingthe verdict.'"
Page 62

The Federal Rules of Civil Procedure are the product of the progress of centuries from the medieval courtroom contest — a thinly disguised version of trial by combat — to modern litigation. "Procedure is the means; full, equal and exact enforcement of substantive law is the end." Pound, The Etiquette of Justice, 3 Proceedings Neb. St. Bar Assn. 231 (1909). This basic consideration underlies the Rules; with it in mind we construed Rule 50(b) in theMontgomery Wardcase.

It has been said of the great Baron Parke: "His fault was an almost superstitious reverence for the dark technicalities of special pleading, and the reforms introduced by the Common Law Procedure Acts of 1854 and 1855 occasioned his resignation." (Sir James Parke, 15 D.N.B. 226.)

Baron Parke despaired prematurely. If he had waited another hundred years this Court today would have vindicated his belief that judges must be imprisoned in technicalities of their own devising, that obedience to lifeless formality is the way to justice.

[For dissenting opinion of MR. JUSTICE MINTON, seepost, p. 65.]Page 63

[EDITORS' NOTE: PAGE 63 IS ELECTRONICALLY NON-TRANSFERRABLE.]Page 64

[EDITORS' NOTE: THIS PAGE IS BLANK.]Page 65
MR. JUSTICE MINTON, dissenting.
I agree with all that MR. JUSTICE FRANKFURTER has said in upholding the action of the Court of Appeals in returning the case to the District Court with directions to enter a verdict for the defendant. I would add another reason why I think the action was valid.

After theCone, Globe LiquorandFountaincases were decided, Congress in 1948 revised the Judicial Code, and in28 U.S.C. § 2106clearly authorized the action taken by the Court of Appeals here. Section 2106 reads as follows:
"The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances."


To me, this statute is controlling. We found it controlling of the action of the Court of Appeals in a criminal case.Bryanv.United States,338 U.S. 552. MR. JUSTICE BLACK, who now speaks for the Court, dissented in theBryancase because he thoughtConecontrolling. By act of Congress, the discretion now rests with the Court of Appeals to grant a new trial or to direct a verdict according to law on the record already made.Page 66
  1. Page 50 "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. . . ." ↩
  2. Page 52 The controlling Pennsylvania statute then was Pa. Laws 1905, No. 198. Like Rule 50(b) it provided for a timely motion for judgment notwithstanding the verdict. The binding duty to do this was explained by the Supreme Court of Pennsylvania as follows, in a case relied on by this Court in theKennedycase:

    "To secure the benefit of that act its terms must be complied with, that is, the refusal of the request for binding instructions must be followed by a proper motion made in due time: Pyle v. Finnessy,275 Pa. 54,57. Here the record as duly certified discloses no such motion nor any evidence that one was made. True, the question of the absence of such motion was not raised in the lower court but, being one of jurisdiction, it cannot be ignored. It follows that as the record stands the judgment cannot be sustained."Westv.ManatawnyMut. F. S. Ins. Co.,277 Pa. 102,104,120 A. 763,764. ↩
  3. Page 54 The writer of this opinion and THE CHIEF JUSTICE are not convinced that the Court of Appeals attempted to direct a verdict for the railroad. What the court said was: "In our opinion the motion for a directed verdict should have been granted. Accordingly the judgment is reversed." But holding that a directed verdict should have been given cannot be the equivalent of a court's entry of judgment for defendant notwithstanding a jury verdict for plaintiff. For after setting aside a verdict as authorized by Rule 50(b), a trial judge may "either" enter a judgment contrary to the verdict "or" order a new trial. The rule thereby requires the exercise of an informed judicial discretion as a condition precedent to a choice between these two alternatives.Conev.West Virginia Pulp PaperCo., supra, at 215. And this discretion must be exercised by the court, not by its clerk. The Court was told during oral argument that it is the practice in the Second Circuit for the clerk to include in his mandate a direction to the district court to have a judgment entered in favor of a party notwithstanding the verdict where the court reverses a district court's refusal to direct a verdict. A rule of practice of this kind under which a court clerk's mandate would automatically direct entry of a judgment for defendant after court reversal of a plaintiff's judgment could not possibly be the result ofPage 55the kind of judicial discretion directed by Rule 50(b). We are not willing to attribute such a practice to the Second Circuit. The Second Circuit's Rules of Practice do not prescribe a practice of that kind. See F. C.A., Rules, c. 5, pp. 96-103, 16 S.Ct. Dig. 143-169, U.S. Dig., Court Rules (L. Ed.), pp. 573-589. Nor do the rules of any other circuit. See F. C.A., Rules, cc. 4-13, pp. 84-194, 16 S.Ct. Dig. 107-523, U.S. Dig., Court Rules (L. Ed.), pp. 545-827. No case has been found that indicates such a practice by the Second or any other Circuit. Since adoption of Rule 50(b) in 1938, courts of appeals wishing to enter or direct judgment have said so in clear, simple and mandatory language. As to the Second Circuit, seee.g.,Venidesv.United Greek Shipowners Corp.,168 F.2d 681;Brennanv.B. O. R. Co.,115 F.2d 555;Williamsv.New Jersey-N YTransit Co.,113 F.2d 649;Conwayv.O'Brien,111 F.2d 611. The Fifth Circuit emphatically pointed out that mere reversal and remand for proceedings consistent with the opinion did not authorize a trial court to enter judgment notwithstanding the verdict; entry of such a judgment was only to be granted as of discretion and after a hearing.Flenikenv.Great American Indemnity Co.,142 F.2d 938; see alsoIn re Mutual Life Ins. Co. of New York,188 F.2d 424,425-426. ↩
  4. Page 56 "(b) RESERVATION OF DECISION ON MOTION. 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." ↩
  5. Page 58 The post-verdict motions inConeandGlobe(there was none inFountain) specifically prayed for a new trial, and the grounds they recited went wholly to the issue of whether or not a new trial would be proper. TheConemotion relied on newly discovered evidence. Moreover, it was much too late to pray for judgmentn. o. v. under Rule 50(b). InGlobethe motion claimed error in rulings on evidence and in taking the case from the jury. The motion in our case, timely under Rule 50(b), was "to set aside the verdict" on grounds which supported both judgmentn. o. v. and the grant of a new trial. Having heard argument and requested briefs and the trial transcript, the judge held that the evidence permitted recovery. It could not do so, of course, if it were insufficient in law. Nor should the fact be forgotten that the judge was dealing with arguments which had been presented to him before on a motion for a directed verdict, as to which he had reserved decision. Motions for directed verdict had been made by defendants inConeandGlobeas well, but they had been expressly denied before the verdict. ↩
  6. Page 60 The specification which I do not quote do not add materially to the motion for judgmentn. o. v. in theMontgomery Wardcase. ↩