NEELY v. MARTIN K. EBY CONSTRUCTION CO., INC.
No. 12.
Argued January 16-17, 1967.
Decided March 20, 1967.
Kenneth N. Kripke argued the cause for petitioner. With him on the briefs was Charles A. Friedman.
John C. Mott argued the cause for respondent. With him on the brief were Anthony F. Zarlengo and Joseph S. McCarthy.
Mr. Justice White
delivered the opinion of the Court.
Petitioner brought this diversity action in the United States District Court for the District of Colorado alleging that respondent’s negligent construction, maintenance,.and supervision of a scaffold platform used in the construction of a missile silo near Elizabeth, Colorado, had proximately caused her father’s fatal plunge from the platform during the course of his employment as Night Silo Captain for Sverdrup & Parcel, an engineering firm engaged in the construction of a missile launcher system in the silo. At the close of the petitioner’s evidence and again at the close of all the evidence, respondent moved for a directed verdict. The trial judge denied both'motions and submitted the case to a jury, which returned a verdict for petitioner for $25,000.
Respondent then moved for judgment notwithstanding the jury’s verdict or, in the alternative, for a new trial, in accordance with Rule 50 (b), Federal Rules of Civil Procedure. The trial court denied the motions and entered judgment for petitioner on the jury’s verdict. Respondent appealed, claiming that its motion for judgment n. o. v. should have been granted. Petitioner, as agpellee, urged only that the jury’s verdict should be upheld.
The Court of Appeals held that the evidence at trial was insufficient to establish either negligence by respondent or proximate cause and reversed the judgment of the District Court “with instructions to dismiss the action.” Without filing a petition for rehearing in the Court of Appeals, petitioner then sought a writ of cer-tiorari, presenting the question whether the Court of Appeals could, consistent with the 1963 amendments to Rule 50 of the Federal Rules and with the Seventh Amendment’s guarantee of a right to jury trial, direct the trial court to dismiss the action. Our order allowing certiorari directed the parties’ attention to whether Rule 50 (d) and our decisions in Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212; Globe Liquor Co. v. San Roman, 332 U. S. 571; and Weade v. Dichmann, Wright & Pugh, Inc., 337 U. S. 801, permit this disposition by a court of appeals despite Rule 50 (c)(2), which gives a party whose jury verdict is set aside by a trial court 10 days in which to invoke- the trial court’s discretion to order a new trial. We affirm.
Under Rule 50 (b), if a party moves for a directed verdict at the close of the evidence and if the trial judge elects to send the case to the jury, the judge is “deemed” to have reserved decision on the motion. If the ‘jury returns a contrary verdict, the party may within 10 days move to have judgment entered in accordance with his motion for directed verdict. This procedure is consistent with decisions of this Court rendered prior to the adoption of the Federal Rules in 1938. Compare Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, with Slocum v. New York Life Ins. Co., 228 U. S. 364, and Aetna Ins. Co. v. Kennedy, 301 U. S. 389. And it is settled that Rule 50 (b) does not violate the Seventh Amendment’s guarantee of a. jury trial. Montgomery Ward & Co. v. Duncan, 311 U. S. 243.
The question here is whether the Court of Appeals, after reversing the denial of a defendant’s Rule 5j) (b) motion for judgment notwithstanding the verdict, may itself order dismissal or direct entry of judgment for defendant. As far as the Seventh Amendment’s right to jury trial is concerned, there is no greater restriction on the province of the jury when an appellate court enters judgmént n. o. v. than when a trial court does; consequently, there is no constitutional bar to an appellate court granting judgment n. o. v. See Baltimore & Carolina Line, Inc. v. Redman, supra. Likewise, the statutory grant of appellate jurisdiction to the courts of appeals is certainly broad enough to include the power to direct entry of judgment n. o. v. on appeal. Section 2106 of Title 28 provides that,
“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.”
See Bryan v. United States, 338 U. S. 552.
This brings us to Federal Rules 50 (c) and 50 (d), which were added to Rule 50 in 1963 to clarify the proper practice under this Rule. Though Rule 50 (d) is more pertinent to the facts of this case, it is useful to examine these interrelated provisions together. Rule 50 (c) governs the case where a trial court has granted a motion for judgment n. o. v. Rule 50 (c)(1) explains that, if the verdict loser has joined a motion for new trial with his motion for judgment n. o. v., the trial judge should rule conditionally on the new trial motion when he grants judgment n. o. v. If he conditionally grants a new trial, and if the court of appeals reverses his grant of judgment n. o. v., Rule 50(c)(1) provides that “the new trial shall proceed unless the" appellate court has otherwise ordered.” On the other hand, if the trial.judge conditionally denies the motion for new trial, and if his - grant of judgment n. o. v. is reversed on appeal, “subsequent proceedings shall be in accordance with the order of the appellate .court.” As the Advisory Committee’s Note to Rule 50 (c) makes clear, Rule 50 (c)(1) contemplates that the appellate court will review on appeal both ■ the grant of judgment n. o. v. and, if necessary, the trial cohrt’s conditional disposition of the motion for new trial. This review necessarily includes the power to grant or to deny a new trial in appropriate cases.
Rule 50 (d) is applicable to cases such as this one where the trial court has denied a motion for judgment n. o. v. Rule 50 (d) expressly preserves to the party who prevailed in the district court the right to urge that the court of appeals grant a new trial should the jury’s verdict be set aside on appeal. Rule 50 (d) also emphasizes that “nothing in this' rule precludes” the court of appeals “from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial .shall be granted.” Quite properly, this Rule recognizes that the appellate court may prefer that the trial judge pass first upon the appel-lee’s new trial suggestion. Nevertheless, consideration of the new trial question “in the first instance” is lodged with the court of appeals. And Rule 50 (d) is permissive in the nature of its direction to the court of appeals: as in Rule 50 (c)(1), there is nothing in Rule 50 (d) indicating that the court of appeals may not direct entry of judgment n. o. v. in appropriate cases.
Rule 50 (c)(2), n. 2, supra, is on its face inapplicable to the situation presented here. That Rule regulates the verdict winner’s opportunity to move for a new trial if the trial court has granted a Rule 50 (b) motion for judgment n. o. v. In this case, the trial Court denied judgment n. o. v. and respondent appealed. Jurisdiction over the case then passed to the Court of Appeals, and petitioner’s right to seek a new trial in the trial court after her jury verdict was set aside became dependent upon the disposition by the Court of Appeals under Rule 50 (d).
As the Advisory Committee explained, these 1963 amendments were not intended to “alter the effects of a jury verdict or. the scope of appellate review,” as articulated in the prior decisions of this Court. 31 F. R. D. 645. In Cone v. West Virginia Pulp & Paper Co., supra, the defendant moved for a directed verdict, but the trial judge sent the case to the jury. After a jury verdict for the plaintiff, the trial court denied defendant’s motion for a new trial. On appeal, the Court of Appeals reversed and ordered the entry of judgment n. o. v. This Court reversed the Court of Appeals on the ground that the defendant had not moved for judgment n. o. v. in the trial court, but only for a new trial, and consequently the Court of Appeals was precluded from directing any disposition other than a new trial. See also Globe Liquor Co. v. San Roman, supra. In Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48, this Court held that a verdict loser’s motion to “set aside” the jury’s verdict did not comply with Rule 50 (b)’s requirement of a timely motion for judgment n. o. v. and therefore that the Court of Appeals could not direct entry of judgment n. o. v. And in Weade v. Dichmann, Wright & Pugh, Inc., supra, where a proper motion for judgment n. o. v. was made and denied in the trial court, we modified a Court of Appeals decision directing entry of judgment n. o. v. because there were “suggestions in the complaint and evidence” of an alternative theory of liability which had not been passed upon by the jury and therefore which might justify the grant of a new trial. 337 U. S., at 808-809.
The opinions in the above cases make it clear that an appellate court may not order judgment n. o. v. where the verdict loser has failed strictly to comply with-the procedural requirements of Rule 50 (b), -or where the record reveals a new trial issue which has not been resolved. Part of the Court’s concern has been to protect the rights of the party whose jury verdict has been set aside on appeal and who may have valid grounds for a new trial, some or all of which should be passed upon by the district court, rather than the court of appeals, because of the trial judge’s first-hand knowledge of witnesses, testimony, and issues — because of his “feel” for the overall case. These are very valid concerns to which the court of appeals should be constantly alert. Where a defendant moves for n. o. v. in the trial court, the plaintiff may present, in connection with that motion or with a separate motion after n. o. v. is granted, his grounds for a new trial or voluntary nonsuit. Clearly, where he retains his verdict in the trial court and the defendant appeals, plaintiff should have the opportunity which 50 (d) affords him to press those same or different grounds in the court of appeals. And .obviously judgment for defendant-appellant should not be ordered where the plaintiff-appellee urges grounds for a nonsuit or new trial which should more appropriately be addressed to the trial court.
But these considerations do not justify an ironclad rule that the court of appeals should never order dismissal or judgment for defendant when the plaintiff’s verdict has been set aside on appeal. Such a rule would not serve the purpose of Rule 50. to speed litigation and to avoid unnecessary retrials. Nor do any of our cases mandate such a rule. Indeed, in Pence v. United States, 316 U. S. 332, we affirmed a Court of Appeals decision reversing the trial court’s failure to grant judgment n. o. v. And in New York, N. H. & H. R. Co. v. Henagan, 364 U. S. 441, this Court itself directed entry of judgment for a verdict loser whose proper request for judgment n. o. v. had been wrongly denied by the District Court and by the Court of Appeals. In view of these cases, the language of Rule 50 (d), and the statutory grant of broad appellate jurisdiction, we think a more discriminating approach is preferable to the inflexible rule for which the petitioner contends.
There are, on the one hand, situations where the defendant’s grounds for setting aside the- jury’s verdict raise questions of subject matter jurisdiction or disposi-tive issues of law which, if resolved in defendant’s favor, must necessarily terminate the litigation. The court of appeals may hold in an employer’s suit against a union, for example, that the case is within the exclusive jurisdiction of the National Labor Relations Board, or in a libel, suit, that the defendant was absolutely privileged t"o publish the disputed statement. In such situations, and others like them, there can be no reason whatsoever to prevent the court of appeals from ordering dismissal of the action or the entry of judgment for the defendant.
On the other hand, where the court of appeals sets aside the jury’s verdict because the evidence was insufficient to send the case to the jury, it is not so clear that the litigation should be terminated. Although many of the plaintiff-appellee’s possible grounds for a new trial, such as inadequacy of the verdict, will iiot survive a decision that the case should not have gone to the jury in the first place, there remain important considerations which may entitle him to a new trial. The erroneous exclusion of evidence which would have strengthened his case is an important possibility. Another is that the trial court itself caused the insufficiency in plaintiff-appellee’s case by erroneously placing too high a burden of proof on him at trial. But issues like these are issues of law with which the courts of appeals regularly and characteristically must deal. The district court in all likelihood has already ruled on these questions in the course of the trial and, in any event, has no special advantage or competence in dealing with them. They are precisely the kind of issues that the losing defendant below may bring to the court of appeals without ever moving for a new trial in the district court. Cf. Globe Liquor Co. v. San Roman, 332 U. S. 571, 574. Likewise, if the plaintiff's verdict is set aside by the trial court on defendant's motion for judgment n. o. v., plaintiff may bring these Very grounds directly to the court of appeals without moving for a new trial in the district court. Final action on these issues normally rests with the court of appeals.
A plaintiff whose jury verdict is set aside by the trial court on defendant’s motion for judgment n. o. v. may ask the trial judge to grant a voluntary nonsuit to give plaintiff another chance to fill a gap in his proof. Cone v. West Virginia Pulp & Paper Co., 330 U. S., at 217. The plaintiff-appellee should have this same opportunity when his verdict is set aside on appeal. Undoubtedly, in many cases this question will call for an exercise of the trial court’s discretion. However, there is no substantial reason why the appellee should not present the matter to the court of appeals, which can if necessary remand the case to permit initial consideration by the district court.
In these cases where the challenge of the defendant-appellant is,to the sufficiency of the evidence, the record in the court of appeals will very likely be a full one. Thus, the appellee will not be required to designate ahd print additional parts of the record to substantiate his grounds for a nonsuit (or a new trial), and it should not be an undue burden in the course of arguing for his verdict to indicate in his brief why he is entitled to a new trial should his judgment be set aside. Moreover, the appellee can choose for his own convenience, when to make his case for a new trial: he may bring his grounds for new trial to the trial judge’s attention when defendant first makes an n. o. v. .motion, he may argue this question in his brief to the court of appeals, or he may in suitable situations seek rehearing from the court of appeals after his judgment has been reversed.
In our view, therefore, Rule 50 (d) makes express and adequate provision for the opportunity — which the plaintiff-appellee had without this rule — to present his grounds for a new trial in the event his verdict is set aside by the court of appeals. If he does so in his brief — or in a petition for rehearing if the court of appeals has directed entry of judgment for appellant— the court of appeals may make final disposition of the issues presented, except those which in its informed discretion should be reserved for the tri&l court. If appellee presents no new trial issues in his brief or in a petition for rehearing, the court of appeals may, in any event, order a new trial on its own motion or refer the question to the district court, based on factors encountered in its own review of the case. Compare Weade v. Dichmann, Wright & Pugh, Inc., supra.
In the case before us, petitioner won a verdict in the District Court which survived respondent’s motion for judgment n. o. v. In the Court of Appeals the issue was the sufficiency of the evidence and that court set aside the verdict. Petitioner, as appellee, suggested no grounds for a new trial in the event her judgment was reversed, nor did she petition for rehearing in the Court of Appeals, even though that court had directed a' dismissal of her case. Neither was it suggested that the record was insufficient to present any new trial issues or that any other reason required a remand to the District Court. Indeed, in her brief in the Court of Appeals, petitioner stated, “This law' suit was fairly tried and the jury was properly instructed.” It was, of course, incumbent on the Court of Appeals to consider the new trial question in the light of its own experience with the case. But we will not assume that the court ignored its duty in this respect, although it would have been better had its opinion expressly dealt with the new trial question.
In a short passage at the end of her brief to this Court, petitioner suggested that she has a valid ground for a new trial in the District Court’s exclusion of opinion testimony by her witnesses concerning whether respondent’s scaffold platform was adequate for the job it was intended to perform. This matter was not raised in the Court of Appeals or in the petition for a writ of certiorari, even though the relevant portions of the transcript were made a part of the record on appeal. Under these circumstances, we see no cause for deviating from our normal policy of not considering issues which have not been presented to the Court of Appeals and which are not properly presented for review here. Supreme Court Rule 40 (1)(d)(2). See J. I. Case Co. v. Borak, 377 U. S. 426, 428-429; California v. Taylor, 353 U. S. 553, 556-557, n. 2.
Petitioner’s case in this Court is pitched on the total lack of power in the Court of Appeals to direct entry of judgment for respondent. We have rejected that argument and therefore affirm.
It is so ordered.
Mr. Justice Douglas and Mr. Justice Fortas, while agreeing with the Court’s construction of Rule 50, would reverse the judgment because in their view the evidence of negligence and proximate cause was sufficient to go to the jury. .
“(b) Motion for Judgment Notwithstanding the Verdict. When-_ ever 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. Not. later than 10 days aftér entry of judgment, 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 . . . . 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. . . .”
Principally, the amendments added new subdivisions (c) and (d) to Rule 50:
“(c) Same: Conditional Ridings on Grant of Motion.
“(1) If the motion for judgment notwithstanding the verdict, provided for in subdivision, (b) of this rule, is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in'that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
“(2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Rule 59 not later than 10 days after entry of the judgment notwithstanding the verdict.
“(d) Same: Denial of Motion. If the motion for judgment notwithstanding the verdict is .denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new 'trial shall be granted.”
Petitioner presented the following question in her petition for a writ of certiorari: >•
“Do Rules 50 (d) and 38 (a) Federal Rules of Civil Procedure and the Seventh Amendment to the Constitution of the United States preclude the Court of Appeals from instructing the trial court to dismiss an action wherein the trial court denied the defendant’s motions for new trial and for judgment notwithstanding the verdict and entered judgment for the plaintiff?”
In view of the question presented by petitioner and our order granting certiorari, we do not consider whether the Court of Appeals correctly held that petitioner’s evidence of negligence and proximate cause was insufficient to go to the jury.
The Advisory Committee explains: “If the motion for new trial has been conditionally granted . . . [t]he party against whom the judgment n. o. v. was entered below may, as appellant, besides seeking to overthrow that judgment, also attack the condi-tional grant of the new trial. And the appellate court, if it reverses the judgment n. o. v., may in an appropriate case also reverse the conditional grant of the new trial and direct that judgment be entered on the verdict.” 31 F. R. D. 645. See Lind v. Schenley Indus. Inc., 278 F. 2d 79 (C. A. 3d Cir. 1960), cert. denied, 364 U. S. 835; Moist Cold Refrigerator Co. v. Lou Johnson Co., 249 F. 2d 246 (C. A. 9th Cir. 1957), cert. denied, 356 U. S. 968; Bailey v. Slentz, 189 F. 2d 406 (C. A. 10th Cir. 1951). See also Tribble v. Bruin, 279 F. 2d 424 (C. A. 4th Cir. 1960).
Since the decision in Cone v. West Virginia Pulp & Paper Co., six courts of appeals have reversed the denial of a Rule SO (b) motion and directed entry of judgment n. o. v. in addition to the Tenth Circuit’s decision in this case. See, e. g., Capital Transit Co. v. Gamble, 82 U. S. App. D. C. 57, 160 F. 2d 283; Stopper v. Manhattan Life Ins. Co., 241 F. 2d 465 (C. A. 3d Cir.), cert. denied, 355 U. S. 815; Richmond Television Corp. v. United States, 354 F. 2d 410 (C. A. 4th Cir.); Mills v. Mitsubishi Shipping Co., 358 F. 2d 609 (C. A. 5th Cir.); Lappin v. Baltimore & Ohio R. Co., 337 F. 2d 399 (C. A. 7th Cir.); Massachusetts Mut. Life Ins. Co. v. Pistolesi, 160 F. 2d 668 (C. A. 9th Cir.). The other, circuits had rendered similar decisions prior to Cone. See Ferro Concrete Constr. Co. v. United States, 112 F. 2d 488 (C. A. 1st Cir.), cert. denied, 311 U. S. 697; Brennan v. Baltimore & Ohio R. Co., 115 F. 2d 555 (C. A. 2d Cir.), cert. denied, 312 U. S. 685; Connecticut Mut. Life Ins. Co. v. Lanahan, 113 F. 2d 935, modifying 112 F. 2d 375 (C. A. 6th Cir.); Federal Sav. & Loan Ins. Corp. v. Kearney Trust Co., 151 F. 2d 720 (C. A. 8th Cir.).
The Advisory Committee’s Note to Rule 50(c)(2) explains: “Even if the verdict-winner makes no motion for a new trial, he is entitled upon his appeal from the judgment n. o. v. not only to urge that that judgment should be reversed and judgment entered upon the verdict, but that errors were committed during the trial which at the. least entitle him to a new trial.” 31 F. R. D. 646.
stay, petition, or motion granted affirmed (includes modified) reversed reversed and remanded vacated and remanded affirmed and reversed (or vacated) in part affirmed and reversed (or vacated) in part and remanded vacated petition denied or appeal dismissed certification to or from a lower court no disposition