147 F. 457 | 8th Cir. | 1906
Lead Opinion
after stating the case as above, delivered the opinion oE the court.
At the conclusion of the evidence the plaintiffs preferred a written request that the court direct a verdict in their favor and by a separate writing also asked that 13 other instructions directed to particular features of the case be given to the jury. The defendant likewise asked that a verdict be directed in its favor. After an extended consideration of both requests for a directed verdict the court denied the plaintiffs’ and sustained that of the defendant. The special requests of the plaintiffs were denied. A verdict was accordingly returned for the defendant, and it had judgment.
It is a familiar rule that if at the conclusion of the evidence in an action at law each party requests the court to direct a verdict in his favor and the court acts upon the invitation thus given and directs the jury to return a verdict for one of them and against the other, the only questions open on appeal are: First, was there substantial evidence supporting the conclusion of the court? and, second, did any error of law occur during the trial ? This doctrine first found expression in Beuttell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654, where the court said:
“As, however, both parties asked the court to instruct a verdict, both affirmed that there was no disputed question of fact which could operate to deflect or control the question of law. This was necessarily a request that the court find the facts, and the parties are, therefore, concluded by The finding made by the court, upon which the resulting instruction of law was given. The facts having been thus submitted to the court, we are limited in reviewing its action to the consideration of the correctness of the finding on the law, and must affirm if there be any evidence in support thereof.”
This court has applied the rule in the following cases: Western Express Co. v. United States (C. C. A.) 141 Fed. 28; Phenix Insurance Co. v. Kerr, 64 C. C. A. 251, 129 Fed. 723, 66 L. R. A. 569; United States v. Bishop, 60 C. C. A. 123, 125 Fed. 181. It has also been applied in the seventh circuit (Insurance Co. v. Wisconsin Central Railway Co., 134 Fed. 794, 67 C. C. A. 300). In the fifth circuit (McCormick v. National City Bank [C. C. A.] 142 Fed. 132; West v. Roberts, 68 C. C. A. 58, 135 Fed. 350; Bradley Timber Co. v. White, 58 C. C. A. 55, 121 Fed. 779). And in the second circuit (Magone v. Origet, 17 C. C. A. 363, 70 Fed. 778; Merwin v. Magone, 17 C. C. A. 361, 70 Fed. 776; Chrystie v. Foster, 9 C. C. A. 606, 61 Fed. 551. See Sigua Iron Co. v. Greene, 31 C. C. A. 477, 88 Fed. 207).
It is said, however, that by submitting the 13 requests for special instructions the plaintiffs showed their purpose not to so invoke the action of the court that they would be thereafter precluded from going to the jury. Some warrant for this contention may be found in :he cases from the second circuit, in each of which it is recited either in the opinion or in the preceding statement that when the requests
In Insurance Co. v. Wisconsin Central Railway Co., supra, the Court of Appeals of the Seventh Circuit, after reciting that both parties moved for a directed verdict, said:
“The record shows that the court reviewed the evidence and stated the ultimate tacts substantially as we have done, and thereon announced the legal conclusion that the policies were in force. After the court thus virtually ended the case the insurance company could not revive its right to demand a jury trial and to predicate error on the court’s refusal to submit the cause to the jury.”
We are of the opinion that where both parties invoke the action of a trial court by requests for a directed verdict, and the request of one of them is accompanied, as in this case, or followed by requests for other instructions to the jury, such other requests do not, by themselves, amount to a withdrawal of the oiie for a directed verdict. The request for a directed verdict is first in insistence upon the attention and action of the court. It searches the entire case for the legal sufficiency and effect of the evidence, and as long as it remains before the court to be acted upon it takes precedence. If granted,- the others serve no purpose. The question should not be determined wholly by a presumed intention of the party to waive or not to waive a submission of the facts to the jury. Regard must be had to the legal import of his action, the position in which he has placed the court, what he has asked it to do and the effect of its decision so invoked. When, at the conclusion of the evidence, the parties move for a directed verdict, each of them asserts to the court that there is no disputed question of fact that can operate to deflect or control the conclusion of law that upon all of the evidence he is entitled to prevail. There.
It is true that the Supreme Court held in Beuttell v. Magone, supra, that a request by each party for a peremptory instruction was not equivalent to a stipulation waiving a jury and a submission of the cause to the court within the intendment of sections 649 and 700, Rev. St. [U. S. Comp. St. 1901, pp. 525, 570], but it was so held with reference to the contentions there made: First, that there being no written stipulation the decision below could not be reviewed upon writ of error; second, that even if the request of both parties in open court be treated as a written stipulation, the correctness of the decision below could not be examined because it was in the form of a general finding on the whole case. The court while making the distinction, nevertheless announced the rule heretofore indicated. If both parties should join in a writing in the nature of a demurrer to the evidence, each saying, in his own behalf in express terms that there is no disputed question of fact for the jury, and that under the law he is entitled to the verdict and judgment, and asking the court to review' the evidence to ascertain the ultimate fact and to then declare the resulting conclusion of law, and the court being so requested acts thereon and directs a verdict for one and against the other, we take it that the mere presence, without more, of written requests of the latter for special instructions would not destroy the action of the court and make it an idle and ineffectual proceeding. And yet the conditions supposed are in legal effect those of the case at bar.
Passing to the questions open to review: It cannot be denied that there was substantial evidence supporting the conclusion of the trial court. It is sufficient to say, without setting it forth at large, that there was much evidence on behalf of the defendant tending to prove its defense to each charge of negligence and wrong asserted by the plaintiffs. With this conclusion our investigation of the facts can proceed no further.
But four assignments of error are relied on by the plaintiffs. 1'n one it is said that the trial court erred “after the refusal of said peremptory instruction, in refusing to give and charge the jury at plaintiffs’ request instructions numbered from 1 to 13, inclusive.” Under repeated decisions of this court applying the eleventh rule this assignment presents no question challenging the attention of the court to the merits of the several requests. Of the remaining assignments one asserts that the trial court erred in refusing plaintiffs’ request for a directed verdict and the other two that it erred in granting the like request of defendant. Taken together, these three assignments present the single question w'hether, under the circumstances of the case,- the court erred in directing a verdict for defendant instead of
The judgment is affirmed.
Concurrence Opinion
(concurring). The only reason why the request of each party for a directed verdict in his favor estops him from a determination of any question in his case, by a jury, and, -when one of the requests is granted, restricts the, inquiry in the appellate court to errors of law occurring at the trial and the existence of substantial evidence to support the conclusion of the court, is that these" requests demonstrate the fact that each party waives his right to the determination of any question of fact by the jury and requests the court to decide them all. Blit when a party requests "the court to instruct the jury to return a "verdict in his favor and at the same time prefers a" series of requests for instructions to the jury, the presentation of these requests conclusively shows that he does not intend to waive, and does not waive, his right to a determination by the jury of every question of fact which remains in the case. The effect of such a series of requests is to say to the court that in the opinion of the party who prefers it the evidence is so conclusive in his favor that he is entitled to a verdict on the ground that there is no evidence which, will sustain a verdict against him, that if the court is of his opinion he requests the direction, but that if the court is of the opinion that the evidence is not of this conclusive character in his favor, then he requests the court to submit the issues to the jury under the other instructions he presents. The series of requested instructions to the jury which generally accompanies a request for a directed verdict has ho other office but to indicate that the party who presents them does not waive his right to a trial by jury, but insists upon it if his request for a directed verdict is denied, and if they" do not have this effect, they "are without meaning, purpose or effect. No opinion or decision opposed to this view has been cited except McCormick v. National City Bank, 142 Fed. 132, 133, in which no reason for the conclusion is presented, and Judge Shelby dissents. In no other case where the appellate court has held that the right to a submission of the questions of fact to the jury was waivedi by requests for an instructed verdict was the claim made that the accompanying requests for instructions to the jury demonstrated the fact that the party did "not intend to waive and did not waive it. In my opinion, the right to a submission to the jury of every question of fact upon which the evidence is not so conclusive that a verdict but one way could be sustained, is waived only when a request or motion for a directed verdict, without other 'requests, is made b)r each party, and it is expressly reserved and demanded by presenting, with a request for a directed verdict, requests for other instructions to the jury respecting the issues of fact in the case. The experience of the profession, the practice in the trial courts and the opinions of the appellate courts, in my opinion, uniformly sustain this view. Minahan v. Grand Trunk Western Railway Co.