do so. The record is devoid of any objection by the defendant Baker to various rulings by the Court on the points enumerated above, although required to do so by Federal Civil Rule 51.
However, the basis for this allegation of error (which is applicable to Baker's points No. 13, 15, 17 and 23) was that the Court failed to relate the facts of the case to the law, citing McNello v. John B. Kelly, Inc., 283 F.2d 96 (3rd Cir. 1960). After examining this decision and the cases cited therein (footnote 4, p. 102), we do not believe that such an "exceptional circumstance" existed in the instant case, as in McNello. As plaintiff's counsel observed, this was a conceptually simple trial. Counsel were forewarned that any detailed discussion of testimony would more appropriately be left to counsel in their closing speeches (which lasted 3 1/2 hours). The basis for refusing Baker's points for charge recited above, was essentially that they contained erroneous factual conclusions, intertwined with statements of law, in the opinion of the Court.
Examining the entire charge as we must, Ridgway National Bank v. North American Van Lines, Inc., 326 F.2d 934 (3rd Cir. 1964), we cannot conclude that it falls within the proscription of McNello, supra.
The defendant Baker has rather vigorously asserted that the Court erred in permitting testimony of Mr. Rosner, (the employment agency proprietor) to the extent that his calculations exceeded $70 per week, since this was the sum claimed in the plaintiff's pre-trial memorandum as the cost of employing persons to perform the services which a housewife normally conducts. This argument is without merit for two reasons. Assuming (without deciding) that a pre-trial memorandum may be properly elevated to the status of a "pleading", it is elementary that Federal Civil Rule 15 would authorize amendment (even by the Court's own motion) of the pleadings to conform with the evidence actually elicited.
Even under the Standing Order of this Court adopted October 23, 1958, the defendant's position is untenable. The purpose of the Standing Order inter alia is to facilitate trial by precluding surprise. Once the defendants were apprised of the expected testimony of the witness Rosner (which they knew or could have known by discovery), they could hardly be heard to assert surprise. In the instant case, the pre-trial memorandum at issue adequately performed its intended function of placing opposing counsel and the Court on notice regarding the contemplated testimony regarding the value of decedent's services.
This Court has also painstakingly reviewed all of the additional allegations of error which counsel have raised. Some were untimely, having been filed more than 10 days after entry of judgment, in violation of Federal Rule 59(b) (See e.g. "Supplementary Grounds" of Defendant Baker, filed over 10 months late). In so holding, we note that a party cannot "reserve the right" to extend the 10 day limitation expressed therein. Marks v. Philadelphia Wholesale Drug Co., 125 F. Supp. 369, 374 (E.D.Pa.1954) affirmed 222 F.2d 545 (3rd Cir. 1955).
Many others were simply general catch-all assertions which were wholly lacking in the specificity required by Rule 7(b). Still others raised matters which were not objected to in a timely manner. In this regard, the "general exception" assertion by counsel is not sufficient to fulfill the requirement for specificity as set forth in Rule 51. See Trent v. Atlantic City Electric Co., 334 F.2d 847, 857-858 (3rd Cir. 1964).
Finally, the remainder not expressly discussed in this opinion did not rise to the magnitude of affecting the "substantial rights of the parties", to warrant the relief requested. See Federal Rule 61.
Accordingly, the motions of the parties for a New Trial or for Judgments N.O.V. are collectively denied.
It is so ordered.