147 F.2d 981 | 5th Cir. | 1945
Lead Opinion
This is an action under the Workmen’s Compensation Law of Texas. Special issues were submitted to the jury under Rule 49 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and the verdict thereon in all respects was in favor of the plaintiff.
The jury found that the plaintiff became totally disabled for 260 weeks beginning February 23, 1943, and ending February 22, 1948; that he would be partially disabled during the period of 104 weeks beginning February 23, 1948, and ending February 22, 1950. Upon the issue as to the average weekly wages of plaintiff during the period immediately preceding February 23, 1943, the jury found the amount to be “$37.25 approx.” It further found that his average weekly earning capacity during said period of partial disability would be $6.
The court below rendered judgment for the plaintiff on the finding as to his total disability; but disregarded the verdict and denied any recovery on the finding as to his partial disability, because of the abbreviation “approx.” after the figures $37.25. The exact amount of the plaintiff’s average weekly wages, according to the undisputed evidence, was $37.36-46/47; from this it is apparent that the finding was exactly 11 cents and 46/47 of a cent less than the correct amount.
The evidence on that subject was positive, explicit, and uncontradicted. The error being clear, and ascertainment from
Separate questions were propounded to the jury upon the issues of total and partial disability, and separate answers were returned in response thereto. A judgment for the plaintiff was entered; it dealt in separate paragraphs with the two principal parts of the plaintiff’s demand, first awarding him compensation for total disability, and then providing that the plaintiff take nothing as against the defendant on his demand for damages growing out of partial disability. The latter is the portion of the judgment from which the plaintiff appealed. He did not appeal from the portion that awarded him compensation for total disability.
The appellee moves to dismiss this appeal because appellant accepted and is accepting payments on the amount awarded him as compensation for total disability and only appealed from that portion of the judgment denying him any compensation for partial disability. We think the' appellant is not estopped to prosecute this appeal. Under Rule 73 of the Federal Rules of Civil Procedure, both parties had the right to appeal from such portions of the judgment as were prejudicial to them.
The threat to issue execution on that part of the judgment favorable to the plaintiff did not deprive the defendant of its right to appeal. If the defendant did not appeal, it was obligated to pay or suffer execution against it; but the plaintiff waived none of his rights, and did or said nothing that misled the defendant. It would not be a liberal construction of the rule to hold that a party must appeal from an award that is wholly favorable to him in order to obtain a review of a separate paragraph in the judgment denying him any recovery on a distinct item of damages. If the plaintiff did not have the right to appeal from only a part of the judgment, his alternative to correct the error of the court in refusing to amend the verdict and enter judgment for him was to ask for a new trial or seek a reversal of the entire judgment. Such a hardship upon the plaintiff for so slight an error, which as a matter of law should have been corrected by the court, would be against the letter and spirit of the new rules.
The motion to dismiss is overruled, the portion of the judgment appealed from is reversed, and the cause is remanded to the district court with directions to correct the verdict and enter judgment for the appellant in accordance with this opinion.
Act of Sept. 24, 1789, c. 20, Sec. 32, 1 Stat. 91; Revised Statutes of the United States, Sec. 954; 28 U.S.C.A. § 777, Note 66; Roach v. Hulings, 41 U. S. 319, 320, 10 L.Ed. 979; Parks v. Turner, 53 U.S. 39, 12 How. 39, 13 L.Ed. 883; Downey v. Hicks, 55 U.S. 240, 14 L. Ed. 404; Koon v. Phoenix Mut. Ins. Co., 104 U.S. 106, 26 L.Ed. 670; Gay v. Joplin, 8 Cir., 13 F. 650; Swofford Bros. Dry Goods Co. v. Smith-McCord Dry Goods Co., 8 Cir., 85 F. 417; Miller v. Steele, 6 Cir., 153 F. 714; American Lumber & Mfg. Co. v. Atlantic Mill & Lumber Co., 3 Cir., 290 F. 632; Solomon v. Waterbury Brass Goods Corporation, 2 Cir., 6 F.2d 990; Gary v. Consolidated Forwarding Co., 7 Cir., 115 F.2d 632.
Rule 73(b) of Federal Rules of Civil Procedure.
Concurrence Opinion
(specially concurring).
I think it quite clear that the district judge erred in denying plaintiff’s motion to enter judgment on the verdict allowing plaintiff recovery for partial disability. While the finding “approximately $37.25 per week” is not sufficiently definite to support a verdict,
If the appeal would have had the effect, if successful, of in any manner disturbing or changing that part of the judgment which had been entered in plaintiff’s favor, I think appellee would have been right in insisting that the appeal should have been dismissed. This is the rule not only generally but in the federal courts as well.
Texas Employers Ins. Ass’n v. Fitzgerald, Tex.Civ.App., 292 S.W. 925.
4 O.J.S., Appeal and Error, § 215(a); In re Minot Auto Go., 8 Cir., 298 F. 853; Prelusky v. Pacific Go-op. Cafeteria Co., 195 Gal. 290, 232 P. 970; Capital Finance Corporation v. Oliver, 116 Fla. 790, 156 So. 736.
Altman v. Shopping Center, 8 Cir., 82 F.2d 521; Smith v. Morris, 3 Cir., 69 F.2d 3.
4 C.J.S., Appeal and Error, § 215(b), note 12; In re Minot Auto Co., 8 Cir., 298 F. 853; Spencer v. Babylon R. Co., 2 Cir., 250 F. 24; State v. Langer, 64 N.D. 744, 256 N.W. 194; 4 C.J.S., Appeal and Error, § 216(c); The Velma L. Hamlin, 4 Cir., 40 F.2d 852; Armstrong v. Hone Star Refining Co., 9 Cir., 20 F.2d 625; McFarland v. Hurley, 5 Cir., 286 F. 365.
