Freid v. McGrath
135 F.2d 833
D.C. Cir.
1943
Check Treatment

*1 FREID CLAWANS NEWMAN. v. McGRATH. No. 7895.

Nо. Appeals for Appeals States Court of United States Court of District of Columbia. Columbia. May 17, May 17, Decided Decided Masucci, Newark, Mr. F. J., D. N. appellant. Miss Ethel Clawans was on the brief, appellant, pro ‍‌​‌​​​‌‌​​​‌​‌​​‌​‌​​​​‌‌‌​‌​​‌‌​‌​‌​‌​‌‌​​‌‌‌​​‍se. West, Mr. Principal Vernon E. Assistant Corporation Counsel, Columbia, District of C., of Washington, D. with whom Messrs. Keech, Corpоration Counsel, Richmond B. Columbia, District of Gray, Chester H. Corporation Counsel,

Assistant District of Columbia, C., both of Washington, ‍‌​‌​​​‌‌​​​‌​‌​​‌​‌​​​​‌‌‌​‌​​‌‌​‌​‌​‌​‌‌​​‌‌‌​​‍D. brief, appellee. ARNOLD, Associate Jus- tices.

PER CURIAM. Appellant sued in the ‍‌​‌​​​‌‌​​​‌​‌​​‌​‌​​​​‌‌‌​‌​​‌‌​‌​‌​‌​‌‌​​‌‌‌​​‍District Court for injunction

an to restrain enforcement of a judgment of conviction by appellee entered judge Police Court of the District Columbia, following appellant’s convic- having tion of engaged in the business of a dealer personal in. second-hand property without a license. The cause came on to be heard before Chief Edward C. Justice Eicher, who, ‍‌​‌​​​‌‌​​​‌​‌​​‌​‌​​​​‌‌‌​‌​​‌‌​‌​‌​‌​‌‌​​‌‌‌​​‍after hearing, entered or- der dismissing complaint. A careful opinion, For fоrmer see examination of the record convinces us that the trial court properly exercised its dis- Koenigsberger, Mor- Lawrence cretion, and thаt there is no reason to dis- Simon, Eugene Young, and Lewis ris Ja- turb its judgment. cobs, Affirmed. lant.

834 Offutt, diet, Dorsey proper Louis Gin- to receive K. sometimes Aim, their berg, H. Mit- Carlton F. and affidavits true ascertain Wade chell, great caution4 Although all of verdict.3 such affi lee. should be davits, exercised in the use there is no inflexible and offered, use,5 especially are when EDGERTON, Associate verdict, impeachment but not for of the Justices. verd true rather for ict.6 of the ascertainment where cases The distinction between MILLER, Associate Justice. be received the affidavits will not Appellee requested has that the mandate goes and received casеs where will be opinion of the court be recalled and its clarified in this case. District Court was directed “to reinstate in which the “types not to the of cases opinion In that the proof may offered, goes to but rather par question moving it is the plaintiff the verdict for and the first trial actually ty prove.”7 offers If the judgment Sрeci- to enter final thereon.” $850.00, amount of found fically, appellee suggests, an indication apportioned amount be mistakenly given should be whether the verdict to be Court, District tween two reinstated “is the of the true verdict fact, would properly if convinced of appellee in the sum of $850.00 power the verdict accord correct have ingly; the erroneous announcement of the express the conclu it so that its verdict in sum of $425.00.” up reached, finally agrеed actually and sion present mistakenly reported As the case stands at the the —but time, upon there is no recorded verdict court.8 ‍‌​‌​​​‌‌​​​‌​‌​​‌​‌​​​​‌‌‌​‌​​‌‌​‌​‌​‌​‌‌​​‌‌‌​​‍judgment can entered. The Dis recalled and a new The will be mandate one, trict Court set aside the first when it respects In mandate will issue. granted the new trial. Our mandate re appеllee’s denied. motion must be quired that the second set one be aside. It is so ordered. The District Court must now act to rein proper any question state the verdict. (dis- EDGERTON, Associate Justice remains as to what constitutes the true ver senting). jury, dict of the it must be decided proper Appellee’s Court, in the verdict exercise of open reported in discretion,1 foreman using its such information as upon that jury had express that the available to it. We court no expressly jurors then opinion question open verdict. The other as to whether the it. to clerk recorded or, it open, confirmed This court and if how it should decided. The District Court directed the govern rules lawof which will exercise judgment enter and the verdict reinstate of the District Court’s discretion says in effect now stated, This court briefly, it. jury’s as follows: Whеre the patent testimony which the Dis- as that error is such face of the already struck heard and the court should trict Court had so amend the verdict as to justify in the еxer- legal princip it conform to correct out discretion, setting aside the where But is latent in cise its mistake les.2 larger apparent entering one.1 But оn the face not of the ver verdict 4 States, 1 Mfg. Hamburg-Bremen United 146 U.S. v. Pelzer Co. v. Mattox 50, Co., C.C.D.S.C., 826, 140, 148, 36 L.Ed. 917. 71 F. 830. 13 S.Ct. Fire Ins. 5 States, 1, 18, Washington Clagett, 2 Market Co. 19 United v. Clark v. 993; 28; 12, 27, 465, L.Ed. Mattox v. v. S.Ct. 77 Dextone Co. 53 140, 148, 149, Council, Building Cir., 13 Trades 60 F.2d 2 50, 47, 917. 36 L.Ed. 49. 6 Minn., Hamburg-Bremen Burlingame 3 Mfg. v. v. Central R. Pelzer Co. C.C.E.D.N.Y., Co., C.C.D.S.C., 23 F. Ins. F. Fire 71 Klinge, 7 831; Gilmore, Co. v. Elliott Southern Pac. C.C.E.D. 964; Fisher, Pa., Glennon 145 F. Stoughton, Capen 732, 736, 294, 295; v. Inhabitants 10 P.2d Mc Idaho County Gray, Mass., 364, Lumber Co. v. Beаufort 365-367. Cabe suggests 417, 418, Co., or better one more No Lumber 187 N.C. S. 756; Staats, verdict adverse to the Moulton v. 83 Utah E. years forthcoming, after three now 27 P.2d there is no jury’s true diet by probing evidence into reported processes was mistakenly to the mental is over. after a trial *3 jury or This, that effect, the ever a agreed majority in is what the of verdict of more over- the proposing than There is court are The law is $425. to do. whelming evidence contrary. jurors’ post-trial the clear re- to thаt statements garding interpretation either their of A week after the verdict was returned instructions, court’s the motives and or in four jurors made affidavits to the may beliеfs which actuated their they effect that believed had and intended not be change to or introduced the words appellee that only would be able not col- to the effect of the verdict.3 “Let it once lect this appellant, verdict from $425 solemnly established that verdicts made also to a like collеct amount from co- a and publicly returned into court can be at- separate defendant under a verdict. Sim- tacked and set ilarly, aside ten orally they testified part those who took publication had appellee’s recovery intended total to be, many and all verdicts could would eight $850. But who were сross- be, inquiry in hope followed examined they as to what had intended to discovering something might which in- appellant’s the limit of liability to the finding. lee, validate would be har- two had not thought discussed or about Jurors assed and party beset the defeated question; five, foreman, including the ** *. If evidence thus secured could testified in effеct that had intended used, be thus appellant’s the result be to liability $425; to be limited to what was private to intended delibera- only indicated that have he tion, subject public the constant investi- appellant intended to be liable for $850. gation; to the destruction frankness I think the right District Court was and freedom of discussion and confеr- striking all testimony. this sup- It would safe, ence.”4 No verdict would be port no this, conclusion more material than tempted by all sorts of though (1) jury ap- did not intend pressure сhange to their minds retroactive- pellant to $425, liable more than ly- (2) appellee it intended to recover from appellee only on to hard recover two defendants a jury total of jury half what against awarded the two appear to have had belief, an erroneous due quite it would be as hard misunderstanding of the court’s in- pay twice structions, verdicts the two awarded against him. persons responsible appellee’s injuries cumulatively could be collеcted. This be- Even if there substantial evidence may lief been have one of the motives agreed upon had which led the to fix than $425' the one that was returned in аmount of its verdict appellant. Capital Traction Co. All this is immaterial. It seems likely Lyon, App.D.C. 396, 402, general verdicts often reflect a require mis- would us treat the rеturned ver- understanding perversion or judge’s of a dict as instead directing conclusive may instructions. This abe sufficient weigh rea- District Court conflicting evi- frequent son for more use of point. ver- dence on the An inchoate verdict dicts2 or interrogatories, under Federal which the not have Procedure, Rules Civil Rule to render should not be substituted for an following C.A. section 723c. It not a actual unquestionably sufficient reason turning general ver- did render. practical question, 3 Hyde the trial. The there- v. United

fore, 451, 488; Wigmore, is whether Evidence, old evidence §§ sufficient. 2 Frank, J., dissenting Pless, Keller McDonald v. Brooklyn Corporation, Bus 59 L.Ed. 1300.