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Arkwright Mutual Insurance Co. v. Philadelphia Electric Company. Sud America Terrestre Y Maritima

decided: July 1, 1970.

ARKWRIGHT MUTUAL INSURANCE CO., APPELLANT,
v.
PHILADELPHIA ELECTRIC COMPANY. SUD AMERICA TERRESTRE Y MARITIMA, APPELLANT, V. PHILADELPHIA ELECTRIC COMPANY. WILBUR ROGERS, INC., APPELLANT, V. PHILADELPHIA ELECTRIC COMPANY V. ARKWRIGHT MUTUAL INSURANCE COMPANY (THIRD-PARTY DEFENDANT)



Kalodner and Aldisert, Circuit Judges, and Higginbotham, District Judge.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

In the early morning hours of December 24, 1959, a fire destroyed the "Bargain City U.S.A." shopping center in Horsham, Pennsylvania. As a result, appellants instituted separate diversity actions in the district court alleging that Philadelphia Electric Company, a supplier of gas to the premises, had negligently caused the fire.*fn1 Specifically, it was averred that the utility company had negligently located its equipment in dangerous proximity to a flammable heating duct, or alternatively, had negligently prevented the fire from being rapidly brought under control by failing to shut off the gas promptly after the fire had started.

The actions were consolidated for trial on motion of appellant Wilbur Rogers, and after a three-week trial on the issue of liability, during which the defense presented no evidence, the jury returned a verdict for the defendant. When the district court denied appellants' motions for judgment notwithstanding the verdict or a new trial, this appeal ensued.

The district court refused to consider appellants' motion for judgment n.o.v. "since the plaintiff has never filed any reasons in support of his motion." Rule 50(a), Fed.R.Civ.Pro. provides that "[a] motion for directed verdict shall state the specific grounds therefor." This requirement also applies to a motion for judgment n.o.v. since it is but a renewal of the motion for a directed verdict. In this case, appellants' motion consisted of nothing more than the following:

The above entitled cases having been consolidated for trial, and a trial having been had thereon resulting in a verdict for the defendant and against the plaintiffs, now comes Arkwright Mutual Insurance Company, Sud America Terrestre Y Maritima and Wilbur Rogers, Inc., plaintiffs in the above entitled cases, and moves the Court to set aside the verdict of the jury returned on February 24, 1966 and the judgment entered thereon on February 24, 1966, and to grant a verdict and judgment in favor of plaintiffs and against the defendant notwithstanding the verdict.

Such a motion is palpably insufficient to conform to the requirements of Rule 50. Budge Mfg. Co. v. United States, 280 F.2d 414 (3 Cir. 1960); Eisenberg v. Smith, 263 F.2d 827 (3 Cir.), cert. den. 360 U.S. 918, 79 S. Ct. 1436, 3 L. Ed. 2d 1534 (1959).

But even assuming the procedural adequacy of the motion, the trial transcript here reveals that there were substantial questions of negligence and causation raised by appellants' testimony.*fn2 Where such questions exist, both the Seventh Amendment and the common law require that only the jury resolve them. Appellants respond, however, that there were no factual disputes for resolution and, consequently, a verdict in their favor was required. Accepting, arguendo, that the facts were undisputed, the absence of evidentiary conflicts in no way implies that the plaintiff has borne the burden of proof as a matter of law. It is the jury alone which must also draw conclusions from these facts. As the Supreme Court observed long ago in Richmond & Danville R. Co. v. Powers, 149 U.S. 43, 45, 13 S. Ct. 748, 749, 37 L. Ed. 642 (1893):

It is well settled that where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this, whether the uncertainty arises from a conflict in the testimony, or because the facts being undisputed, fair minded men will honestly draw different conclusions from them.

This is not to say that the use of the directed verdict or judgment n.o.v. in favor of the plaintiff is an impossibility in a federal diversity action. Only last year, this court held in Gatenby v. Altoona Aviation Corp., 407 F.2d 443, 445 (3 Cir. 1969), that: "Where the party having the burden of proof produces evidence which establishes the facts in his favor so clearly that reasonable men could have no doubt, he is entitled to a verdict directed in his favor." Appellants here produced no such compelling evidence. Their motion for judgment notwithstanding the verdict was properly denied.

Turning to appellants' motion for a new trial, we are initially faced with a procedural question under Rule 59(b), Fed.R.Civ.Pro. That rule provides that a motion for a new trial "shall be served not later than 10 days after the entry of judgment." In the instant case, the district court entered final judgment on February 17, 1966. Eight days later appellants filed their motion for a new trial in which they advanced nine specific grounds.*fn3 Included in the closing paragraph of the motion was a statement which purported to "reserve the right to file and specify additional errors upon the receipt of the transcript of the testimony." Over two years later -- and approximately ten months after the transcript had been filed -- appellants presented 38 "additional reasons" for a new trial. The district judge ruled that the 10 day limit of Rule 59(b) prevented consideration of these additional reasons. We agree.*fn4

This court has previously held in Massaro v. United States Lines Co., 307 F.2d 299, 303 (3 Cir. 1962) and Russell v. Monongahela R. Co., 262 F.2d 349, 354 (3 Cir. 1958), that a district court is without authority to grant a new trial for reasons assigned after the mandatory 10 day period under Rule 59(b). Since appellants relate no extraordinary circumstances which might conceivably allow consideration under Rule 60(b), the district court could not award a new trial for any of the additional reasons.

Examining the reasons advanced in the original motion filed within the 10 day limit, we see no substance in the assertions that the jury's verdict was contrary to the law or evidence. As noted previously, the testimony presented the jury with a legitimate choice between liability and nonliability. ...


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