and the conditions as they were. That was reflected, of course, in the time that the job took and I don't think the finished product suffered any due to it.'
The cases relied on at page 15 of plaintiff's brief are inapposite because in those cases the experts' opinions were upon the ultimate issue to be decided by the jury. For this reason, the statement in United States v. Spaulding, 293 U.S. 498 at page 506, 55 S. Ct. 273 at pages 276-277, 79 L. Ed. 617 (1935), relied on by plaintiff, is inapplicable. The trial judge made clear that the jury was free to disregard completely the testimony of any expert so that the jury could not have thought they were bound to follow the opinion of an expert on any issue. The charge contained this language at N.T. 1415-6:
'Now I am going to explain to you the proper use of expert testimony, because that is a big factor in this case. We have had Mr. Huxford and we have had other witnesses here; Mr. Boakes, for example, who testified as experts, * * * we allow experts to give what we call opinion testimony, which the average lay witness is not allowed to give under our rules of law.
"The rules of evidence ordinarily do not permit a witness to testify as to his opinions or conclusions. A so-called expert witness is an exception to this rule. A witness who by education and experience has become expert in any art, science, profession or calling may be permitted to state his opinion as to a matter in which he is versed and which is material to the case, and may also state the reasons for such opinion. You should consider each expert opinion received in evidence in this case and give it such weight as you think it deserves; and you may reject it entirely if you conclude the reasons given in support of the opinion are unsound.'
'And, of course, you can accept it. But in this case, opinion testimony of experts -- you see, you have got two things to consider: First, do you think the witness is a persuasive one, one whose opinion you accept? And, second, do you think he has good reasons for the particular opinion that he stated?'
C. Contention that the trial judge improperly 'blamed plaintiff for delaying the case' (pages 17 ff. of plaintiff's brief)
The first statement in the jury's presence
concerning delaying or prolonging the case was unnecessarily injected into the record by counsel for plaintiff at N.T. 125, as follows:
'I would ask for the withdrawal of a juror on the last testimony of the witness, not only because it completely went beyond any scope of direct examination, but because it is based upon matters which he is assuming, based upon situations in which he was not there, and further based upon the fact that these statements now are going to prolong this case probably three to four more days in bringing in -- '
In view of this statement, the plaintiff cannot complain of later statements by the court, pointing out delays caused by plaintiff's counsel, in an effort to expedite a trial which took approximately twice as long as had been estimated by the pretrial judge (see paragraph 11 of pre-trial report (Document 23), estimating a trial time of 5-6 days). The accounting personnel of plaintiff
had failed to prepare clear summaries of plaintiff's financial records and had to be directed to prepare such summaries during the trial (N.T. 654-8, 668, 686-8, 717-9, 772, 780-1, 784, 869 ff., 894-911 & 914). Also, financial documents sought were not available when requested (e.g., N.T. 896) and all these factors, among others, contributed to prolonging the trial prior to the remarks at N.T. 1050-4 quoted at page 18 of plaintiff's brief.
The trial judge made this statement to the jury during the trial and before the conclusion of the evidence
'Now, ladies and gentlemen of the jury, before we start this morning I do want to make one thing clear to you, and that is that during the course of almost every trial I feel that it is one of my responsibilities to expedite the trial. And this is no criticism of the attorneys, (counsel for plaintiff) or anyone else. It is just my feeling of one of my responsibilities in disposing of the cases in this court. And, of course, cases are not to be decided on questions of personality, anyway, questions of tactics. (Counsel for plaintiff) and (counsel for defendant) are both very good lawyers, and this is a real controversy here. There is a real difference of opinion between these parties, and this difference of opinion largely, as in all cases, is a difference of opinion as to the facts, and you have got to decide these facts. That is what we have juries for.
'So you do not go out into the jury room and say, 'Well, the judge thinks (counsel for plaintiff) is taking too long, and, therefore, we should decide against him,' or 'He thinks (counsel for defendant) was interrupting the witness,' or anything of that sort. Those, of course, would be totally improper considerations for you in your decision in the case.
'You decide the case according to the issues which are submitted to you when I give you instructions. And the factual issues are ones that you have got to resolve, having listened to all the witnesses in this case.
'* * * Naturally, none of us wish the case to extend into next week and have you required to stay here beyond the time that you were committed to, that you were asked; namely, the two-week period that you were called for. However, of course, this may be possible. It is always possible that a case is held over. And I believe the summons which you got stated that at the end of it, that you might be held over. But we are doing our best now to get this case finished by the end of the week, and if it should not be, this should not be considered the fault of either party or either counsel. This is a case where you have got some real problems to decide, and I know you are going to do it in a conscientious manner, and I would be most unhappy if I thought anything I said during the course of the case prejudiced you against or in favor of either party, because the fact that cases are submitted to you means that you can decide the matter either way. If that were not so, the case would not be submitted to you.'
None of the other reasons for new trial
require discussion, particularly in view of F.R.Civ.P. 61.
It is true that counsel for plaintiff permitted himself to become upset on the morning of the second day of the trial, but it would be most unfair to defendant and to the other litigants in this court, who are waiting to have their cases tried, if a new trial lasting two weeks should be granted because plaintiff's counsel, having elected to call a witness who is an employee of defendant, becomes upset at the trial judge's determination of the scope of the cross-examination.
An examination of the transcript (N.T. 94-101, 116-136) discloses that the questions asked on the cross-examination of Mr. Anderson were within the scope of the direct examination by counsel for plaintiff; i.e., the cross-examination was as to things 'legitimately growing out of or related to matters' covered by plaintiff's examinations. See Kline v. Kachmar, 360 Pa. 396, 403, 61 A.2d 825 (1948); see, also, Sullivan v. New York L.E. & W.R. Co., 175 Pa. 361, 366, 34 A. 798 (1896); Brown, Pennsylvania Evidence, p. 294 (Phil0.1949); III Wigmore, Evidence, §§ 874 & 880 (3r d Ed.1940).
II. Plaintiff's Motion For A Directed Verdict (N.T. 1359-1360)
Since the jury was entitled to reject the opinions of plaintiff's experts, as pointed out at I-B above
and in view of the facts and authority referred to at I-A above, this Motion, on which decision was reserved during the trial (N.T. 1360), must be denied.
III. Defendant's Motion For A Directed Verdict (N.T. 1359-60)
This motion is based on the uncontradicted testimony that in April 1956 there was a subsequent understanding made between the parties pursuant to which defendant agreed to do further work on the engine and give plaintiff a credit on the bills it had sent, and plaintiff agreed to pay the reduced balance due within a certain time. In view of the terms of §§ 418 and 419 of the Restatement of Contracts
and particularly the presumption in the latter section, the trial judge has concluded that, on this record, defendant is entitled to judgment in its favor as a matter of law.
The briefs of the parties on this point, which were filed prior to the trial (at the time of the argument on a motion for summary judgment), have been docketed as Documents 53 and 54.
And now, June 3, 1963, it is ordered that (a) plaintiff's motion for a new trial (Document 46) and plaintiff's motion for a directed verdict (N.T. 1359-60 and par 1 of Document 34) are denied, and (b) defendant's motion for a directed verdict (N.T. 1359-60 and par. 6 of Document 35) is granted.