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April 26, 1968

DEFENDER SHIPPING CO., Inc. and Earl J. Smith & Co., Inc.

The opinion of the court was delivered by: BODY

 BODY, District Judge.

 Presently before the Court are the plaintiff's alternative motions for judgment n.o.v. and for a new trial. Interrogatories to the jury in this case were answered by a jury finding that the defendants, owners and operations of the S.S. "Smith Defender", were not negligent in any way. Negligence was the only theory of liability presented to the jury; thus, on November 21, 1967, we entered judgment in favor of the defendants.

 On November 28, 1967, plaintiff's counsel filed the post-trial motions here at issue. According to the mandatory dictates of Local Rule 31(a), plaintiff's counsel was obliged to request the trial transcript from the court reporter in writing within ten days after filing his post-trial motions. However, counsel failed to do so. On December 14, 1967, sixteen days after filing and six days after the Rule 31 deadline, plaintiff's counsel requested the transcript from the court reporter by telephone. The reporter quite correctly refused to make the transcript without a permissive order from the Court, as authorized by Local Rule 31(b).

 On December 21, 1967, plaintiff's counsel filed a nunc pro tunc motion under Local Rule 31(b), requesting an order authorizing the court reporter to transcribe part of the trial proceedings. This Court granted the plaintiff's motion and filed the appropriate order on the same day, December 21, 1967, thirteen days after the Rule 31 deadline.

 The plaintiff's contentions that his failure to order the transcript within ten days was justified by "good cause" and thus excusable under Local Rule 31(b) should have been rejected by this Court. Plaintiff's counsel claimed that he simply had never been aware of Local Rule 31 or the ten-day limit; and further, that Rule 31 should not be enforced where the plaintiff's post-trial motions have merit. The latter contention is patently absurd; the former, patently inadequate. Counsel for the plaintiff is quite experienced in litigation before this Court. He must realize that ignorance of a published procedural rule in effect since January 1, 1965 is not a legally cognizable excuse for failure to comply with its requirements.

 Nevertheless, because we ourselves misconceived the mandatory nature of Local Rule 31, and because we were loath to penalize the plaintiff for his attorney's negligence, we did grant the plaintiff's nunc pro tunc motion. Now, after the requested transcript has already been made, and after argument on the post-trial motions has already been heard, it would be pointless to vacate our order and to dismiss the post-trial motions for want of prosecution. The harm has already been done. We will decide the merit of the post-trial motions. However, we wish to make explicitly clear that we do consider that order to have been erroneous; that the plaintiff's counsel did not have "good cause" for failing to comply with Local Rule 31(a); and that the order should not be considered precedent for any future permissive orders under Local Rule 31(b).

 Before disposing of the plaintiff's post-trial motions, it is necessary to capsulize briefly the factual context of the instant litigation. The plaintiff, William Dantzler, was employed by the defendants as a member of the crew of the S.S. "Smith Defender" for two to three months in the spring of 1963. During the voyage, the plaintiff's violent conduct caused the officers of the ship to place him in leg irons in the ship's hospital, where he was restrained for six days as the ship passed from Chittagong, Pakistan, to Colombo, Ceylon. According to the only theory of liability submitted to the jury, the defendants were negligent in their treatment of the plaintiff, and their negligence caused the plaintiff to suffer a severe emotional and nervous breakdown which allegedly will require extensive future medical treatment and will prevent the plaintiff "from performing his usual duties, occupations and avocations." Plaintiff's Complaint, p. 4.

 At the conclusion of the trial, interrogatories were presented to the jury. In response to the first interrogatory, which asked "Were the defendants negligent in any manner whatsoever?", the jury replied, collectively and individually, "No". The Court accordingly entered judgment for the defendant.

 I. Judgment N.O.V.

 Pursuant to F.R.Civ.P. 50(b), the plaintiff has moved for judgment notwithstanding the verdict. A motion for judgment n.o.v. can be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Upon plaintiff's motion, the evidence must be viewed in the light most favorable to the defendant, who secured the jury verdict in this action.

 In support of his motion for judgment n.o.v., plaintiff argues that "at no time did the officers or agents of defendants administer any medical care whatsoever by a physician until June 11, 1963, and * * * this failure * * * warranted the Court in charging the jury that the defendants ...

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