In the first place, Rule 8(e)(2) of the Federal Rules of Civil Procedure provides, inter alia:
'A party may set forth two or more statements of a claim or defense alternately or hypothetically, * * *. A party may also state as many separate claims or defenses as he has regardless of consistency * * *.'
The complaint charges as follows:
'VIII. That on the 30th day of September, 1954 at or about 3:30 P.M., the Plaintiff's decedent, Robert E. Wilson, was lawfully driving a 1948 GMC truck owned by the Home Test Baking Company of Huntingdon, Pennsylvania, on Route 22 in Oliver Township, Mifflin County, Pennsylvania, when a truck owned by the Defendant, Nu-Car Carriers, Inc. and being operated by Walter H. Hess, an agent, servant or employee of the Defendant, Nu-Car Carriers, Inc., who was then and there acting within the scope of his employment, negligently struck the truck being operated by Plaintiff's decedent, all to the damage and injury of Plaintiff's decedent, as hereinafter set forth and entirely due to the negligence of the Defendant, as hereinafter specified.'
In strict conformity with that allegation, plaintiff proceeded on the theory that the bread truck was proceeding eastwardly on Route 22. Hess, the driver of defendant's tractor-trailer, put the bread truck on Route 22 facing eastwardly with the exception of 'a foot or two' which was on the berm on the southern side of the road.
Defendant attempted to show that the bread truck entered Route 22 from Water Street. Plaintiff did not proceed on alternate theories but did meet the counter theory set up by defendant. At no time did Hess testify to having seen the bread truck on Water Street or coming out of Water Street. Paul E. Laird, a witness called in behalf of defendant, testified that he was a passenger on the westbound bus; that he looked to the left into Water Street; that he 'thought' he saw a bread truck; again, he was 'sure' he saw a bread truck; finally, he 'thought' the bread truck was moving. The fact remains there was ample evidence to the effect that the bread truck was completely on Route 22 in a position perpendicular to the road. If the testimony of the driver of the defendant's tractor-trailer is to be believed, namely, that a foot or two of the right side of the bread truck was on the berm on the southern side of the road, it would be entirely consistent with the idea that decedent was pulling off the main highway to stop at his own home a short distance to the east, the direction in which he was heading.
As a further reason for new trial, defendant feels that the charge was inadequate and therefore prejudicial to defendant. It also charges error in the admission or rejection of various points submitted by both parties.
Rule 51 of the Federal Rules of Civil Procedure reads as follows:
'At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.'
In the instant case, at the conclusion of evidence, the Court met in chambers with counsel for plaintiff and counsel for defendant and there and in their presence considered seriatim first the points submitted by plaintiff and then the points submitted by defendant and indicated the rulings that would be made thereon. The record indicates some argument on the points but no objection on the part of the defendant. As a matter of fact, after plaintiff had indicated his objection to some of defendant's points, counsel for defendant said: 'I have nothing to offer.' At the conclusion of the charge counsel for defendant said: 'I want to except to the refusal of all the Defendant's points and the affirmation of all the Plaintiff's points, and then I will ask for a general exception to the charge.'
The record indicates a complete failure on the part of the defendant to comply with the specific injunction of the Rule to state 'distinctly the matter to which he objects and the grounds of his objection.' In discussing this Rule the Supreme Court in Palmer v. Hoffman, 318 U.S. 109, at page 119, 63 S. Ct. 477, at page 483, 87 L. Ed. 645, said: 'In fairness to the trial court and to the parties, objections to a charge must be sufficiently specific to bring into focus the precise nature of the alleged error. Where a party might have obtained the correct charge by specifically calling the attention of the trial court to the error and where part of the charge was correct, he may not through a general exception obtain a new trial.' See also, Biggans v. Hajoca Corp., 3 Cir., 1950, 185 F.2d 982.
Finally, defendant complains that the verdict of $ 93,655.38 is excessive. The decedent was 27 years of age at the time of the accident with and did not affect the substantial rights a life expectancy of 40.36 years. He had been employed by the bread company as a driver a little over a year and his gross earnings for the year were about $ 3,000. He was well thought of by his employer and had expected earnings from $ 4,500 to $ 5,000 per year, being salary paid by the employer to salesmen of experience. Decedent left a widow 25 years of age and four children aged respectively at time of accident 8, 6, 4, and 1 year.
I am not only not shocked at the amount of the verdict, nor, under all of the facts and circumstances of the case, do I consider it excessive. A careful reading of the transcript of the trial and thorough consideration of briefs submitted leaves me with the definite conclusion that the verdict as rendered should stand. The trial was fair. The charge, together with rulings on points submitted, in my opinion, correctly, fairly and adequately informed the jury on the applicable law.
Defendant's motion for new trial will be denied.