It may be made under Rule 60(a) which provides that "clerical mistakes" in a judgment may be corrected "at any time". If the instant motion is in fact a Rule 60(a) motion and not a Rule 59(e) motion, it is timely.
Whether this motion is made under Rule 59(e) or 60(a) depends on whether the pre-judgment interest plaintiff seeks is a matter of right or merely discretionary with the Court. If discretionary, it is a Rule 59(e) motion, Gilroy v. Erie-Lackawanna R.R., 44 F.R.D. 3 (E.D.N.Y. 1968) and if a matter of right it is a Rule 60(a) motion. Merry Queen Transfer Corp. v. O'Rourke, 266 F. Supp. 605 (E.D.N.Y. 1967). We conclude that the pre-judgment interest plaintiff seeks would, assuming we decide to apply the Michigan statute, be a matter of right. The language of the statute is plain -- "shall be allowed" not "may be allowed". In a similar case it was held that a similarly worded statute allowed interest as a matter of right. Merry Queen Transfer Corp. v. O'Rourke, supra. Accordingly, we conclude that plaintiff's motion is made under Rule 60(a) not 59(e) and as such is timely.
We now turn to the conflicts of law question whether Michigan or Pennsylvania law applies to issue of interest on the verdict in this case. We have concluded that we must apply Michigan law and therefore plaintiff's motion to include interest from August 26, 1965 must be granted.
Under Van Dusen v. Barrack, 376 U.S. 612, 613, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964) when a case is transferred from one District to another under 28 U.S.C. § 1404(a), the transferee district court sits in effect as the transferor district court. As a District Court of the Eastern District of Michigan, we must apply the conflict of laws principles of the state in which we sit. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). Thus, whether Michigan or Pennsylvania law applies in this case depends on Michigan conflicts of law.
We have found no decision in Michigan directly on point, that is, deciding whether to apply the Michigan pre-judgment interest statute or foreign law allowing interest only from the time judgment in a suit brought in Michigan involving a foreign plaintiff suing because of an accident occurring in a foreign jurisdiction. We believe, however, that under the ensuing analysis Michigan would apply its own statute in this situation.
It is clearly the Michigan law that conflicts of law questions involving matters of remedy and procedure are determined by the law of the forum, Bostrom v. Jennings, 326 Mich. 146, 40 N.W.2d 97 (1949); Edison v. Keene, 262 Mich. 611, 247 N.W. 757 (1933); Petrusha v. Korinek, 237 Mich. 583, 213 N.W. 188 (1927), and that matters of substance are determined by the lex loci delicti, Abendschein v. Farrell, 382 Mich. 510, 170 N.W. 2d 137 (1969). Thus, if the Michigan pre-judgment interest statute would be considered by the Michigan Courts as procedural, we must apply it. If, however, it was considered substantive we must apply Pennsylvania law. We believe Michigan would hold its pre-judgment interest statute to be procedural in this context. The Supreme Court of Michigan in Ballog v. Knight Newspapers, Inc., 381 Mich. 527, 164 N.W. 2d 19 (1969) has already held this statute to be procedural in a context different than the one at bar.
In Ballog, the Michigan Supreme Court was faced with a situation where the plaintiff recovered a judgment after the effective date of the pre-judgment interest statute but filed his complaint before the effective date. The question before the Court was whether the pre-judgment interest statute was to be applied retroactively or only prospectively. The Court said that under Michigan law this question was decided by determining whether the statute is substantive or procedural. If substantive it could only be given prospective application, but if procedural it could be given retroactive application. The Court held that the statute was procedural, reasoning that interest on a judgment is incident to a right that already exists and is analogous to the costs and court fees of an action. This holding and the reasoning behind it is equally applicable to the conflict of laws context before us. Accordingly, we are compelled to view the statute as procedural and to apply the Michigan pre-judgment interest statute.
II. PLAINTIFF'S MOTION FOR ATTORNEY'S FEES.
Plaintiff's motion for attorney's fees in a strict liability in tort case is admittedly novel. The basis of plaintiff's motion is the fact that the common law allowed attorney's fees as damages in some cases to completely restore plaintiff to the status quo, though concededly it was not allowed in tort cases. See Plaintiff's Brief in Support of Motion, pp. 5-6.
As to the timeliness of plaintiff's motion, it is unclear whether, if we accepted his novel proposition, he would be entitled to recover attorney's fees as a matter of right or discretion of the Court. Assuming it would be a matter of right, and hence treating his motion as timely, we are not prepared to accept plaintiff's theory especially since the common law is to the contrary in tort cases generally and no statute or decision in this jurisdiction or any other has been cited as authority for awarding attorney's fees in similar cases.
III. DEFENDANT'S MOTION FOR JUDGMENT N.O.V. OR FOR A NEW TRIAL
Defendants' motion for judgment N.O.V. and for a new trial must be denied. This case was clearly a case for the jury. There was evidence supporting both the plaintiff's and defendants' positions and the jury chose the plaintiff's. Defendants' argument that he is entitled to judgment N.O.V. or a new trial is principally based on rulings we made at trial as to the admissibility of certain items of evidence. We have carefully reviewed the entire record in this case in light of all defendants' objections and can find no reason to warrant granting either defendants' motion for judgment N.O.V. or for a new trial.