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September 18, 1968

Samuel B. SLAUGHTER, Jr., Plaintiff,
The PHILADELPHIA NATIONAL BANK, Defendant and Third-Party Plaintiff, v. PEOPLES NATIONAL BANK OF CAMDEN COUNTY, Third-Party Defendant

The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 In this case the jury returned a verdict in favor of plaintiff and against defendant, Philadelphia National Bank (hereinafter PNB) for $47,500 as compensatory damages and $35,000 as punitive damages, and in favor of PNB and against third-party defendant, Peoples National Bank of Camden County, New Jersey (hereinafter Peoples) for $41,250.

 Motions for judgment notwithstanding the verdict or for a new trial were filed by both defendants. After argument, the motions for a new trial were withdrawn. Predicated upon irreconcilable inconsistent jury findings, the court, on its own initiative, *fn1" set aside the judgment and ordered a new trial. PNB and Peoples now move to vacate the court's opinion and request that we render a decision on its motion for judgment n.o.v. or to limit the new trial to the sole issue of agency.


 A special written finding designated as 2(a) was submitted to the jury. *fn2" Their obligation was to determine if Peoples was the agent of PNB. The jury received instructions that liability could attach to Peoples only in the event that they found that the relationship of principal and agent existed. Their answer was in the negative. The jury, nonetheless, also found Peoples responsible in damages to PNB. (Finding 5). The verdict was perverse and clearly demanded the exercise of the court's authority to prevent a miscarriage of justice.

 It is important to recognize that the verdict of this jury was controlled by Rule 49(a) and was not the equivalent of a general verdict pursuant to Rule 49(b). Decisive is the holding in Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 125, 83 S. Ct. 659, 668, 9 L. Ed. 2d 618 (1963):

"[the] fact is that the jury returned no general verdict for either party. * * * By undertaking to reconcile irretrievably conflicting findings of the jury * * *. (the court would have) invaded the province of the jury * * *. We would avoid such an intrusion by ordering that the cause be put to another jury".

 Movant cites, Jones and Laughlin Steel Corp. v. Matherne, 348 F.2d 394 (5th Cir. 1965) to persuade us to attempt to reconcile the inconsistency previously illustrated. The distinction between the case at bar and Jones is that (Jones) was relevant to Rule 49(b), whereas the instant case is governed by Rule 49(a) and hence, to reconcile this jury's verdict would be tantamount to invading their province. In our view the perverse and inconsistent jury finding is dispositive for the granting of a new trial. However, persuaded by the fact that the inconsistency had no application to the cause of action wherein Slaughter was the plaintiff and relates solely to the action wherein PNB sought relief from Peoples, we will limit said new trial to all matters in issue existing between PNB as plaintiff and Peoples as defendant.


 We now conclude that where motions for a new trial and judgment n.o.v. are filed that the parties to the action are entitled to the trial judge's decision on both motions. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S. Ct. 189, 85 L. Ed. 147 (1940); Mailloux Enterprises, Inc., and Merchants Wholesale Co., Inc. v. Firemen's Insurance Company of Newark, New Jersey, 366 F.2d 740, 742 (9th Cir. 1966).

 In this action in replevin there are three sub-cases. The plaintiff is suing the defendant, PNB, on the theory that it wrongfully withheld his stock as collateral, and that he was damaged because of this wrongful retention by a drop in the value of the stock. Secondly, PNB asserted a claim against Peoples on the ground that PNB is entitled to indemnification from Peoples since whatever damage occurred, happened while Peoples had possession of the stock, and Peoples failed to apprise PNB of plaintiffs' claim although aware of same when it issued a certificate of participation to PNB. Finally an action between Peoples as plaintiff and Slaughter as defendant, predicated upon a debt alleged to be due to Peoples from Slaughter.


 On August 9, 1962, West Indies Company Limited, a Liberean corporation issued 38,000 shares of its common stock to plaintiff. There were four other individuals who also received 38,000 shares of common stock.

 The five stockholders arranged a loan of $360,000 from a firm named Doll-Stevens Inc., and at various times executed the following documents:

 (a) Series of promissory notes; (b) Pledge of their stock as collateral security; (c) Irrevocable power of attorney authorizing Doll-Stevens to take any action in ...

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