*1 Cir., 510, 514, denied F.2d certiorari S.Ct. single proposition Not
(cid:127)opinions urged by party. filed was either
Upon Attorney has them the United States we opportunity
bad no be heard. Until hearing granted we
have such a I think case, to solve this done our best up our
as we should we do before throw Supreme ask grant
hands and Court to n certiorari, majority as the now do. idea has behind 2255 merit. It was § study problem (cid:127)drafted after much
n needed attention. n shouldbe procedure sensible Its
compared with the Mountain-to- procedure bringing Mahomet the testi- Judges, McCord, Holmes and dis- Circuit mony Michigan judge, of a and other Mich- sented. igan response witnesses to California corpus Walter latest McDonald’s habeas
petition. McDonald, Swope Cir., U.S.960, certiorari denied 337 1522,93 L.Ed. 1759. If there be infirmities I think § importance matter of considerable they
whether he of the character and extent Judge Stephens’ opinion stated in or wheth-
n er they be of the character and extent in Judge
stated opinion. Denman’s first situation,
If latter is the objec- true raised readily
tions can corrected
(cid:127)simple amendment, I think that this ought say
court not to that all the labor expended upon has been drafting
(cid:127)of 2255 must be committed to the § ashcan opportunity more thorough
argument before the yet than has
been afforded. CORPORATION OIL
SUNRAY ALLBRITTON.
No. Appeals
United States Circuit. Fifth 15, 1951.
Feb. *2 liability question
The crucial as to on appellant is whether the re- this tained control at the time derrick requested its fall. Neither side special jury instruction for a gave particular point; on this the court none; jury and the made no finding there- by jury finding on. There was a that immediately prior the derrick was defective collapse, to its its con- and that defective ap- dition could been discovered care, pellant by ordinary the exercise do, failure it failed to and which proximate was a cause of the derrick’s that, falling. findings at There were also immediately collapse time had, prior thereto, the contractor and the have, contractee did not control over the of the performance means and manner required appellee. which was work rejected appellant’s The court below jury’s finding as to contention means and man- had control over the who III., Houston, Rice, Bryson, C. E. H. Ben performing prevented ner of the work it Angus Brin, Long- Wynne, Philip Tex., G. theory being on the liable Howell, Tex., view, Oklahoma Edward retained control of the derrick. The Woodfin, Houston, Okl., City, Gene M. finding court held that such had reference appellant. Tex., for dispute to whether Allbritton Cire, Houston, Smith, George E. Edwin J. employed by appellant or the con- was Tex., appellee. for tractor; that he found was HUTCHESON, Judge, Chief Before by appellant. employed special No McCORD, BORAH, HOLMES, RUS- jury having made or finding been SELL, Judges. Circuit requested particular issue as to derrick, judge trial control HUTCHESON, Judge. Chief empowered 49(a) to make it under Rule Procedure, Federal Rules of Civil of the of the issues and For a statement By request failing to such 28 U.S.C.A. case, we refer to facts in this pertinent party jury, each waived the finding court, which is opinion of by jury. thereof On this D.C., F.Supp. reported agree We 49(a) provides point, Rule further said that, holding: court’s with the lower omitted follows: “As an issue premises control over the Sunray retained may make demand the court a find- such derrick, was bound exercise so, ing; or, if fails to do it shall to maintain the derrick care reasonable finding to have made in accord deemed use; and' that there in- safe condition judgment special on the verdict.” with the support its evidence substantial appellee that he Sunray retain such control. It is contended did finding that invitee too, business under derrick holding: that there was a agree, with its We premises support appellant; and on the evidence to substantial responsive pleading Sunray admitted its to ex latter findings, that failed jury’s appellee employee or care and that such failure was that either such “was ercise collapse alleged invitee defendant as of the proximate cause the an from this injuries plaintiff.” obvious sustained derrick admittedly Allbritton was either an em appellee. subrogation rights of its fendant virtue appellant. The invitee of the ployee or Appellee accord- under Texas. employee; the laws of not an found hold ingly prayed that he recover to have trial court found or deemed *3 n trustee, could this said sums he Allbritton as invitee. found that he was an an derrick; not do. He not the trustee required on the to work was not express 17(a), it; sense Rule in the not and his trust himself use work he did every provides action shall required which that way He no affected it. in in party brought in of the real name the distinguished handle tools as to express of an upon interest but the trustee machinery. go no did he At time without in his own name required trust sue derrick, though to be the party bene- joining for whose him the put danger of with point him in at a which Moreover, brought. it is independent fit the action is by it if it hit fell. Other being em- law that the now settled Texas performing work for contractors were right against ployee’s third to recover Sunray at the time it under derrick persons damages in is limited to excess fell, superintendent at latter’s compensation paid to him.1 oper supervising the whole same time was therefore, is, judgment The reformed finding, The trial ation. court’s Sun- by reducing $13,084.70, it sum ray control had surrendered and, reformed, supported as is Affirmed. appellee’s employer, is derrick to should not by substantial evidence and Reformed affirmed. clearly ap erroneous. be set aside arrangement working pearing from the McCORD, Judges, HOLMES and Circuit derrick remained under the control that the dissenting., appellant, appellee being aforesaid, ap follows invitee it HOLMES, Judge (dissenting). Circuit duty legal pellant was under exercise manifestly The moderated premises, ordinary keep in care excessive, my opinion, judgment in derrick, reasonably safe cluding the not be affirmed un- entered thereon should appellee’s for use. condition portion fully less the excessive remit- Finding no reversible error appellee. ted Heretofore has been it we, record, therefore, affirm the judg jurisprudence well settled in federal ment, except $13,- recovery as to general excessiveness verdicts in actions 084.70, paid had been to Allbritton which question personal for torts was a for compensation workmen’s insurance courts, and that courts lacked carrier, sought Allbritton had which jurisdiction such matters.1 The earliest Though on its it was to recover behalf. cases,,-and prototype of them these party interest, the real with Bedford, all, 433, Parsons v. Pet. therefor, party sue was not a to this 732, appellant wherein the com- suit, prosecute having failed and refused to plained of court’s refusal order the trial appellant. Instead, sought against testimony, to record the clerk which suing by agreeing to recover with might have an error of the established that, suit, appellee bring the he would upon Supreme issue of fact. The recover, it, hold for all sums he could assignment held Court immaterial against was entitled to recover de- that it Seventh the reason that Amendment Employers Brandon, Drug Store, nity Ins. Ass’n v. 1. Texas Co. v. Tex.Civ. Week’s 636, 153, Wm. App., 89 S.W.2d Cam 126 Tex. Traders & S.W.2d Tex.Civ.App., Gamble, & Co. v. eron Texas Co. v. West Utilities General Ins. Ponder, 165, 713, Co., Hanson v. Tex.Com. S.W. 165 S.W.2d 1401Tex. App., 35, 40; 8307, Dil Mitchell v. 300 S.W. also R.C.S. Texas See Art. lingham, Tex.Civ.App., 22 S.W.2d art. 8307. Ann.Civ.St. Jor Vernon’s Cf. 972; Pedigo Pedigo Croom, Collier, Tex.Civ.App., & Tex.Civ. dan v. 223 S.W.2d 1074, 1076; App., Hoffman 544i, S.W.2d Clinic, Tex.Civ.App., Houston 41 S.W.2d 134, 138; Indem & Accident Hartford upon mat- examination of the foundation prohibited its of such re-examination Bed- a rests classic in Parsons v. ters tried dictum where the issues were ford; appropriate. jury. is now decision of this constitutional dispo- question necessary jurisdiction That court has case, under sition of the Section because plaintiff remittitur, call on the for a with Judiciary 22 of Act of no reversal curtailing jury, out the function of the permissible of error was writ dis majority conceded both the Supreme fact. error of Court for Schiedt, senting opinions in Dimick Chap. 84, Chap. 20, 22, 2 Stat. Stat. Sec. L.Ed. 603. 2, p. 244, Chap. Sec. Sec. 18 Stat. *4 scholarly opinions See also in the Slocum Chap. 1, 318, R.S., p. 1011, Stat. 36 Sec. Co., 365, 364, v. N.Y. Life Ins.
231,
291,
(1940 Ed.),
p. 1167,28
Sec.
U.S.C.
then,
523,
Why,
33 S.Ct.
4. See Comment 4. appeal In 26 writer
right On ac Law to trial battle.6 Yale Journal totally admits, quite it, p. 57, ac count that Blackstone is the writ attaint proved experience justice that curate saying laid “if aside because defect happened. surprise, inad “shortest, cheapest most at the trial vertence, imperfections misconduct, party or effectual cure for all . III, obtaining Black relief p. verdict.” in the court above Book Lewis’ stone, 13, p. a new pp. the earlier trial.” See also note 1351. Like article; 1, p. Univ. the same inferior courts of the United States Vol. Review; original appellate juris Chicago Law exercised Law Penn. both diction, presided King’s Review Bench to judges, who sat over or more one procedure by An remit- alternative to mutually con gether in courts were closely for titur is to scan the record more interchangeably courts nected and “were error, judgment that and reverse the III other.” each advice be af- excessive should Blackstone, p. p. Blackstone, Gavit’s York firmed. In Ins. Co. of New Home Blackstone, p. Lewis’ 309, 311, Co., Cir., Tydal old district of the United States courts judge alone said: “The trial this court jurisdiction exercised circuit court duty to the verdict has set distinguish proceedings did in their it. The most if dissatisfied with aside they or a whether sat as a circuit district do, thinks the court can by the nature court. This was determined weight according verdict is proceedings and the character evidence, is to scan trial more close- *6 judgments. the Southwick Postmaster Thus, by jury a fact ly for tried error.” General, 2 Pet. L.Ed. 479. otherwise than ac- re-examined would be. law, of procedure cording the rules the common by to The contention that remit- specious appellate in which took a more direct and less titur federal courts inhibited is law, approach contrary problem. At common to the the Amendment to Seventh Blackstone, Coke, Bracton, Bracton, teachings Ashton, according Fleta, of to the question Mansfield, of the Glynn, Coke, Blackstone, a Mansfield, was and Eng- discretion in ren- having their jury of the common law abused as to the rules of land; manifestly opinions excessive dering conflict with the of verdict for and in Stone, Brandéis, any motive Hughes, Holmes, Cardozo, damages often “without bad business, scope all; inexperience Rutledge, in to from the essential at misapprehension, inattention to purposes incapacity, of Seventh Amendment. It the circumstances, in- a thousand other opinion in conflict with the is likewise of Always Supreme praising the com- Galloway in causes.” Court United the nocent 372, 390, to States, quoting Bracton the after mon spirit amended with that the verdict should be the of Rule 87 L.Ed. effect erred, re- or “the matter 50(b) Rules of Civil Pro- if jury of the Federal the tribunal,” cedure; Blackstone higher of decisions the Sixth and to with ferred observation, Circuits; worthy says: of and with the actual “And it de- Ninth Supreme superior all infinitely others the the Kennon cision Court how itself, approves Gilmer, even U.S. 9 S.Ct. III, disposition of its revision.” Book very the final of which mode Blackstone, pp. 1348-9. Lewis’ impossible to reconcile with the Sev- it is Ch. upon referring the issue of except procedure of Amendment the basis enth The implies higher tribunal was damages to a decision the constitution- excessive the things procedure said appellate the that Blackstone ality exercise the one of remittitur, being expressly perfect that most excellent meth- rendered held there- glory “which was in od of decision the the Seventh Amendment was Maugre English Territory law.” this: shall force of Montana. the we full
á81 repudiate re-examining de- and referred) Blackstone such “excellent method fact; cision,” question looking of the common law it was as violative England com- The verdict that 1791? effort had rendered and judges upon higher mon-law tribunal facts verdict was which the question based. (the of which It ascertain the facts evidence of the manifest not, now, verbatim) is preserved verdict, excessiveness and this is- to sue was judgment commendable. was often disclosed re-examined before or from affidavits was taken entered. One officeor function of “who motion judge, appeal the “information” of the for a an new trial was report usually special made a and minute alleged verdict error of Now, fact jury.7 of the evidence.” with the facts If was sus- the verdict tained, them, stenographically reported, judgment entered; before thereon was majority if manifestly federal courts the verdict was found to be excessive, refuse justices to consider the excessiveness it was moderated supported or a granted. ap- verdicts if substantial new trial federal evidence, pellate practice and refuse determine of looking at verdict through eyes minimum amount will (evi- maximum or judge the trial stand; but, permitted they attempt dently think in an to convert an issue against weight question law) grew up fact into a evidence, they may country scan the record of during this of a existence error, closely probably trial more prohibited any federal statute reversal arduous, back for ex- send the case for an error of fact. This is trial, pensive, long-delayed when simple truth that cannot denied explained away a remittitur of the excessive amount would except by saying that pre- be better for plaintiff “higher original and without exercising this court” was judice to appellate jurisdiction, the defendant. not’ that is an explanation supported which cannot be Maryland Co., Casualty In Miller v. by English authorities. the common Yet 463, 465, decided in Sec- law alluded to the Seventh Amendment Lepisto. ond Circuit refused to follow the *7 is the common law of England, and our case, (Cabb Cir., Lepisto) v. 9 6 F.2d primary federal decisions are not author- thought might it but to be desirable England; ities as to the common law appellate power give courts the to review primary authority have a but we do toas damages, procedural the and that a Amendment, meaning the the Seventh difficulty presented, the Seventh Story, speaking when Mr. for the Justice bar, Amendment no being closing with court, says: “Beyond question, all the practice this statement: “Until the is common law here alluded is not to the frankly changed, must we adhere to state, common (for law individual questioned it exists.” as The court probably all), differs in is the com but it practice that it was bound to decide England, mon grand law of reservoir by unrealities,” issue such “tenuous as jurisprudence.” of all our S. v. Won U. judge whether the trial was acting within Fed.Cas.No.16,750, son, 1 5. Then Gall. the bounds of “tolerable conclusion” direct, English let us be and take the determining that the within approach to problem, common-law as bounds “reasonable inference from the required by the Seventh Amendment. evidence”, when damages it assessed the the amount at stated in the verdict. Courts Why should we look to decisions federal engage not should refine- such scholastic to ascertain the rules of common law ments, Judge said Learned Hand. unquestioned when construction of law, At common re-examining the Seventh Amendment indicates common damages issue of by pattern that had been as the England law that is to tried jury, higher a (to court copied? Why which Bracton not be should follow we date, moderating this all federal cir- (district, courts method
the common-law cuit, devising supreme) express a have had the verdicts instead excessive substitute, statutory power trials, grant how- new therefor?8 The substitute unconstitutional, by it cases because where there had been trial ever, is not jury, for reasons had substance for which new trials but the is not minutiae usually by granted the Sev- been in the courts preserved of law.10 jury that is then, How, fortiori, genuine say, can we if A convinced Amendment. enth manifestly excessive, according the rules this verdict is exactly procedure, suggest we no power is unconstitutional. remittitur? not the common substitute, appellate implied Procedure is court remittitur Under the power trials, directly grant error power should has no to review rendering practice. not jury in be confused with the civil fact committed law verdict; nearly if Blackstone manifestly argument answered this excessive years ago pointing or monstrous out the dis- is inordinate closely more tinction between civil (after scanning the record common ap- us, said, any), procedures. law finding With no new and not for errors whether trial is allowed unless be a manifest pellate court determine there mistake, subject-matter worthy its discretion court abused manifestly interposition, as law whereas civil setting the verdict aside process parties liberty Transfer Taxicab & Co. are at Detroit excessive. 193; questions merely Pratt, Cir., from court to 2 F.2d Carter Coal v. fact, Nelson, Cir., perpetual “which is a v. 91 F.2d source Co. chicane, delay, Dismang, expensive Union obstinate Western Tel. Co. Ed., p. Cir., 362, 364; litigation.” Fruit Lewis’ Southern Fulmer, Cir., 107 F.2d Distributors Finally, appears, far so neither the Virginian Ry. Co. v. Armen- question damages of excessive nor the trout, Cir., 156 F.2d question procedure remit- by re- judging 911. This is Am.Jur. was considered in Par- titur the court circuitous, control, at mote best Bedford, supra. sons v. On the merits uncertain, unsatisfactory A method. that, the court held even all evidence manifestly excessive in- verdict that jury passed had been in the ordinate; may in instances some record, it could not examine the correct- Each the three termed monstrous.9 verdict; yet ness Parsons unusual, adjectives something describes Armor, 3 Pet. where a abnormal, extraordinary. At common law waived, court treated the evidence *8 King’s engage Bench did not exceptions, of “giving a bill and ut- as to the mean- in refinements tenuous testimony force to the most favor ing of words. these opinion judg- Armor” per- says must reversed. It doing right, ment Next Blackstone 1349), why Ed., p. object the same great in ceived result should (Lewis’ reached, public justice as matter of have been the administration should satisfaction, the evidence been in give public and if the all had record be to Bedford, 433, many objections 7 liable to Parsons v. 3 Pet. L.Ed. verdict be and doubts, party away 732, given the court had “the go no would and utmost satisfied testimony prospect proffered reviewing had in favor it. force” to the unless he case, arraign, The latter due determination of Bedford. to its “He would source, manifestly unjust, high study abhor is entitled careful tribunal imagined analysis, should not be which he had done him an in- and followed scope possibility effect of the jury without a Seventh redress.” was written Judiciary From Amendment. It more than Act 1789 down to Appendix, Appendix, 10. Comment 10. 8. 8. See Comment 9. See
488
erraverint,
justiciarii
forty
juratores
years
5. Si
et
after that amendment was sub-
eorum,
pronun-
adoption,
judicium
mitted
secondum
dictum
for
we have the same
tiaverint,
pronuntiationem;
books and
from
same source material
falsam faciunt
dictum,
sequi
et ideo
eorum
which to
common law of
non debent
determine the
England
per
Supreme
diligentem
illud
sed
emendare tenentur
were available
dijudicare, nes-
in 1830.11
our
Court
We should not close
Si autem
examinationem.
ciant,
question.
majus judicium.
minds
great
to this
recurrcndum
constitutional
erit ad
Blackstone,
Lewis’
page
McCORD,
Judge, concurs in this
Circuit
principal
There were four
writs
dissent.
appeals
proceedings
the nature of
king’s
There were
courts
law.
STRUM,
part
no
Judge,
Circuit
took
attaint,
deceit,
querela,
writs
of audita
this decision.
error. The
of attain was a
writ
very
remedy
old
of a verdict
for reversal
APPENDIX
unduly given.
in lieu of
devised
remedy
the ferocious Norman
of trial
Tillotson,
392,
1. Minor v.
2 How.
43
battle. As the
attaint succeeded
392,
134;
writ of
Suydam
U.S.
11 L.Ed.
v. William
battle,
son,
so the motion
427,
978;
20 How.
15 L.Ed.
York
New
a new
trial was devised as one of sev-
Fraloff,
&
Cent.
H.
v.
Co.
100
Railroad
might
eral remedies
an attaint
24,
531;
Railway
U.S.
25 L.Ed.
Wabash
avoided.
The motion struck at errors
McDaniels,
454,
Co.
2
v.
107 U.S.
S.Ct.
record,
appearing
of fact not
605;
because
932,
Gilmer,
27 L.Ed.
131
Kennon v.
testimony of witnesses was submitted
22,
696,
110;
U.S.
9 S.Ct.
L.Ed.
Wilson
33
presence
jury,
viva voce
Everett,
616,
664,
11
v.
S.Ct.
35
writing.
practice
not reduced to
286;
York,
Erie,
L.Ed.
Lake
West
New
&
setting
aside verdicts
motions so
Administrator,
R.
ern
Co. v. Winter’s
143
superseded
attaint,
proceedings
far
60,
356,
71;
12
City
U.S.
S.Ct.
36 L.Ed.
appear
few instances of them
later than the
Power,
436,
Lincoln
v.
151
14
U.S.
century.
1764, Rainsford,
J.,
In
16th
387,
C.
224;
38 L.Ed.
Boyd,
Hansen v.
161
enough,
deny-
said:
are
wilful
746;
U.S.
16 S.Ct.
40
“Juries
ing
parties
new trial
here will but send
Torbert,
Cir.,
Van Boskerck v.
2
184 F.
Chancery.”
Procedure,
into
Martin’s Civil
419;
Maryland Casualty Co.,
Miller v.
2
308;
Blackstone,
1348, 1363;
p.
pp.
Lewis’
Cir.,
1;
40 F.2d
note
Smith v.
Stephen
;
pp.
on Pleading,
96 5 Harvard
Co.,
Socony
Cir.,
2
Vacuum Oil
96 F.2d
Review, p. 386.
Law
98;
State,
210;
Bradham
F.2d
Swift
Ellinor,
Cir.,
Co. v.
&
F.2d
as was
to trial
Just
Co.,
Tydal
Cir.,
Home Ins.
Co.
attaint,
battle
according
writ
309, Id., Cir.,
F.2d
Reid Bracton, Fleta,
Blackstone: 3
Black-
Nelson, Cir.,
724; Virginian
154 F.2d
Bracton,
1, c;
stone
1.4 tr.
Fleta
Armentrout,
Cir.,
Ry. Co. v.
166 F.2d
1.5, c.
Sec. 8.
400; Crowell-Collier
Co. v.
Pub.
Cald
*9
Schiedt,
474,
Dimick v.
8.
293 U.S.
at
941;
well,
Cir.,
5
170 F.2d
Dowell v.
488,
296,
page 302,
at
page
55 S.Ct.
Cir.,
11 See
Fraloff,
simple procedure of the
follow
v.
York
&Cent. H. Railroad Co.
for a
treating
common
motion
24,
law
31,
Wilson
100 U.S.
independent proceeding
621,
trial
Everett,
616,
11 S.Ct. new
as
139 U.S.
appellate
may
nature
be called
664,
Lincoln
City
35 L.Ed.
Power,
387,
judicial
greatest procedural
436, 438, 14
error in the
151 U.S.
other,
implicit history of
States.
the United
L.Ed. 224. The
which
n
first,
power
deter
is that
has
11. “The seventh
amendment does
upper
mine,
law,
a matter
provide
shall
facts tried
recovery by a
lower limits within which
re-examined,
they shall
not be
but that
permitted
au
plaintiff
will be
than accord-
not be re-examined otherwise
* * *
thority
to set aside a verdict
ing
the rules of
commonlaw.
Valley
within those limits.' Arkansas
may
court
where
Mann,
U.S.
Land
& Cattle Co.
proceed to
reverse on the facts and then
74,
Cf.
69,
458,
9 S.Ct.
32 L.Ed.
a final determination of the case that
Bennett,
Ry.
Southern
Co. v.
by jury
Arti-
destroyed.”
has
trial
been
87,
566,
34 S.Ct.
New Unabridged Dictionary of
Revised Language.
English 17, Judiciary Act Sec.
10. Sec. of Revised Statutes the United States, 269 of the Code Sec. Judicial UNITED STATES. LOWDEN v. 391 of Title Code Sec. No. 12658. Code U.S.C.A. Sec. Pound, by Roscoe an excellent article In Appeals United States of which found its much has Circuit. Ninth present way into our Federal Rules 20, 1951. Feb. Procedure, “Upon any is said: Civil cause, appeal, sort power to make whatever have full should justice complete case and whole
order the require, substantive law with in accord remand, becomes unless new trial
necessary.” principles sug- The of this fully now contained Section
gestion are of 1948.
2106 of the Code Judicial quotation from said ar- following pertinent here: “At com- very is also
ticle prius, the cause nisi after at mon upon rule in banc the court heard or for motion in arrest for a simple In that non obstante. judgment *10 error, in the writ proceeding of a formal proceeding independent analogy character, true technical Unhappily, the procedure. for Portland, Lomax, Or., Leroy L. Vol. followed.” has been other appellant. p. 228. failure Journal, This Law Central