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MONTGOMERY WARD & CO. v. DUNCAN

decided: December 9, 1940.

MONTGOMERY WARD & CO
v.
DUNCAN



CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

Hughes, McReynolds, Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy

Author: Roberts

[ 311 U.S. Page 244]

 MR. JUSTICE ROBERTS delivered the opinion of the Court.

In this case we are called upon to determine the appropriate procedure under Rule 50 (b) of the Federal Rules of Civil Procedure.*fn1

[ 311 U.S. Page 245]

     To recover damages for personal injuries, respondent (hereinafter spoken of as plaintiff) brought action against petitioner (hereinafter spoken of as defendant), pursuant to an Arkansas statute declaring that corporations should be liable for injuries to an employe attributable to the negligence of a fellow employe. The complaint alleged that the plaintiff, while in the defendant's service, had been so injured. The answer denied the plaintiff was an employe of the defendant; denied he was injured in the manner described or by the negligence of his co-employee and set up assumption of risk. At the close of the evidence upon the trial, the defendant moved for a directed verdict. The motion was denied and the jury returned a verdict for plaintiff on which judgment was entered. Within ten days the defendant filed its written motion in the following form:

"Comes the defendant, Montgomery Ward & Company, and files its motion praying that the jury's verdict herein and the judgment rendered and entered thereon be set aside and judgment entered herein for the defendant notwithstanding the verdict, and its motion for a new trial in the alternative, and as grounds therefor states . . ."

Thereunder, in heading A, it set out nine reasons in support of the motion for judgment, four of which were general, to the effect that the verdict was contrary to law, to the evidence, to the law and the evidence, and that the court erred in refusing to direct a verdict. Four challenged the sufficiency of the evidence as to negligence, as to the existence of the employment relation,

[ 311 U.S. Page 246]

     and as to assumption of risk, to support the verdict. One dealt with the preponderance of the evidence and was therefore inappropriate in support of the motion.

Under heading B, in support of the motion for a new trial, the same reasons as were assigned for the other motion were, with an immaterial exception, repeated; and additional reasons were added to the effect that the damages were excessive; that the court erred in ruling upon evidence, and in refusing to give requested instructions.

The motion concluded thus:

"Wherefore, the defendant prays that the verdict of the jury herein, and the judgment rendered and entered thereon, be set aside, and a judgment rendered and entered herein in favor of the defendant; and defendant further prays in the alternative that in the event the Court refuses to set aside the verdict rendered for the plaintiff and the judgment in favor of the plaintiff rendered and entered on said verdict, and refuses to render and enter judgment herein in favor of the defendant notwithstanding said verdict and judgment, that the court set aside said verdict and judgment on behalf of the plaintiff and grant the defendant a new trial herein."

The District Court rendered an opinion*fn2 holding that there was no evidence of negligence on the part of the co-employe and that, therefore, judgment should be entered for the defendant.

The plaintiff filed a motion praying that, to limit the issues on appeal, the court's order and judgment specifically show the grounds on which relief was granted, and "in order that the judgment of the appellate court may be final," the motion for a new trial be overruled. The court, however, merely entered a judgment for the defendant notwithstanding the verdict.

[ 311 U.S. Page 247]

     The plaintiff filed a second motion reciting that, at a hearing upon his earlier motion, the defendant had resisted the contention that the court should rule on the motion for a new trial as that motion "passed out of existence and consideration on the granting of its motion for a judgment notwithstanding the verdict." The plaintiff further recited that the court did not pass upon the plaintiff's contentions but simply entered a judgment in favor of the defendant, and renewed his prayer that the court consider the motion, ...


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