A. B.

Plaintiff's Exception to the Court's Instruction.

vs. At Law. Cause No.

C. D.

....

the court on

Be it remembered that on this the ...... day of motion of the defendant C. D., having instructed the jury to bring in a verdict for the defendant (or a verdict for the defendant on his cross action etc.) the plaintiff there in open court and before said cause was submitted to the jury, and before said jury retired, made and filed his exception to said instructions in writing. The objections to said charge being stated as follows:

1st. Plaintiff excepts to the peremptory instruction for defendant in charging the jury to return a verdict for the defendant upon the cause of action set forth in plaintiff's petition (or in charging the jury to return a verdict for defendant on his cross-action, etc.) because it takes from the jury the consideration of plaintiff's evidence upon the question as to whether, etc. (stating some material issue upon which conflicting evidence was offered).

2d. It took from the jury the right to pass upon the facts showing a distinct liability of defendant to plaintiff as alleged in his petition.

3d. It takes from the jury the right to pass on the contract sued upon, which was sustained by evidence offered in the cause (or which is shown in the facts agreed upon).

Counsel for Plaintiff.

The exception should contain all the evidence admitted in the trial of the cause. As to instructing a verdict, see Withdrawing Case from Jury.

CHAPTER XVI.

VERDICT.

The form and effect of the verdict in actions at law are matters in which the circuit courts of the United States are governed by the practice of the courts of the State, says the Supreme Court in Glenn v. Sumner, 132 U. S. 156, 33 L. ed. 301, 10 Sup. Ct. Rep. 41, citing sec. 914, U. S. Comp. Stat. 1901, p. 684, and Bond v. Dustin, 112 U. S. 604, 28 L. ed. 835, 5 Sup. Ct. Rep. 296; Knight v. Illinois C. R. Co. 103 C. C. A. 514, 180 Fed. 372. But the cases are not harmonious. See St. Charles v. Stookey, 85 C. C. A. 494, 154 Fed. 778, and cases cited. But I take it that the departure from conformity with State practice would only arise where to conform would prevent the just administration of justice in the particular case in the light of their system of jurisprudence.

Effect of the Verdict.

General verdicts are conclusive of the facts in a court of error. The remedy is a motion for a new trial. Hayden v. Ogden Sav. Bank, 85 C. C. A. 558, 158 Fed. 90; Omaha Water Co. v. Schamel, 78 C. C. A. 68, 147 Fed. 504; Glenn v. Sumner, 132 U. S. 157, 33 L. ed. 301, 10 Sup. Ct. Rep. 41; Herencia v. Guzman, 219 U. S. 44, 45, 55 L. ed. 81, 82, 31 Sup. Ct. Rep. 135, and cases cited. Can only be cured by motion. for new trial. Duke v. St. Louis & S. F. R. Co. 172 Fed. 684; Etna Indemnity Co. v. J. R. Crowe Coal & Min. Co. 83 C. C. A. 431, 154 Fed. 546. The only review that can be had as to the finding of fact by a jury is when there is no evidence to support it; further than to determine this fact the appellate court will not go. Boatmen's Bank v. Trower Bros. Co. 104 C. C. A. 314, 181 Fed. 806, and cases cited.

120

Effect in a Court of Error.

The assignment that the verdict was excessive will not be considered on review; we have seen that it can only be cured by motion for a new trial. Duke v. St. Louis & S. F. R. Co. 172 Fed. 684; Beaver Hill Coal Co. v. Lassilla, 100 C. C. A. 283, 176 Fed. 725; Toledo, St. L. & W. R. Co. v. Kountz, 94 C. C. A. 244, 168 Fed. 835; Sun Pub. Co. v. Lake Erie Asphalt Block Co. 84 C. C. A. 584, 157 Fed. 80; Omaha Water Co. v. Schamel, 78 C. C. A. 68, 147 Fed. 509, and cases cited; Nelson v. Bank of Fergus County, 84 C. C. A. 609, 157 Fed. 162, 13 Ann. Cas. 811; New York, L. E. & W. R. Co. v. Winter, 143 U. S. 60, 36 L. ed. 71, 12 Sup. Ct. Rep. 356; Ætna L. Ins. Co. v. Ward, 140 U. S. 76, 35 L. ed. 371, 11 Sup. Ct. Rep. 720. (See Remittitur.) Nor that it is against the weight of evidence. Ibid.; E. I. Dupont Co. v. Waddell, 101 C. C. A. 335, 178 Fed. 407; Eastern & W. Lumber Co. v. Rayley, 85 C. C. A. 296, 157 Fed. 532; Chicago, M. & St. P. R. Co. v. Anderson, 94 C. C. A. 241, 168 Fed. 901; Mt. Vernon Refrigerating Co. v. Fred W. Wolf Co. 110 C. C. A. 200, 188 Fed. 168; Hemple v. Raymond, 75 C. C. A. 526, 144 Fed. 797; Transit Development Co. v. Cheatham Electric Switching Device Co. 194 Fed. 964. The court can only look to see if there is any evidence to support the verdict. Swensen v. Cunningham, 85 C. C. A. 146, 157 Fed. 753. To assign error that there was no evidence to support a verdict, the question should be presented by a motion to instruct a verdict, and setting forth in the bill of exceptions the motion, the ruling, the exceptions taken, and the evidence upon which the motion was predicated. Sun Pub. Co. v. Lake Erie Asphalt Block Co. 84 C. C. A. 584, 157 Fed. 80; Knight v. Illinois C. R. Co. 103 C. C. A. 514, 180 Fed. 369; Missouri, K. & T. R. Co. Collier, 88 C. C. A. 127, 157 Fed. 348.

Directing a Verdict.

We have already seen, in chapter 10, under Withdrawing the Case From the Jury, that where there is no evidence to

support the plaintiff's case, or the defendant's defense where the plaintiff has shown a prima facie case by his evidence, the court may instruct the verdict to be found by the jury. Or where the evidence is such, that after allowing all justifiable inferences, it would not support a verdict, the court may instruct a verdict. We have also seen that a rule of the States which requires the submission of the case "on a scintilla of evidence" to the jury does not apply in the Federal courts, as the question of the sufficiency of the evidence is one of law for the court. So, again, where the evidence is so conclusive that the court in the exercise of a sound judicial discretion would be compelled to set aside the verdict, the trial judge should direct the verdict to be found by the jury. Postal Teleg. Cable Co. v. Grantham, 109 C. C. A. 370, 187 Fed. 52; Louisville & N. R. Co. v. Roberts, 101 C. C. A. 202, 177 Fed. 922; Travelers' Ins. Co. v. Selden, 24 C. C. A. 92, 42 U. S. App. 253, 78 Fed. 285; Washington Mills v. Cox, 85 C. C. A. 154, 157 Fed. 634.

The court in exercising his discretion under these conditions must look at the evidence most favorably to the party against whom the direction of the verdict is asked. Erie R. Co. v. Rooney, 108 C. C. A. 118, 186 Fed. 19, and cases cited; Pennsylvania R. Co. v. Forstall, 87 C. C. A. 73, 159 Fed. 893; Sonnenberg v. Southern P. Co. 87 C. C. A. 64, 159 Fed. 884.

Again, where the evidence is contrary to reason or opposed to natural physical laws, so that it cannot support a verdict, the court may direct the verdict. Pennsylvania Co. v. Whitney, 95 C. C. A. 70, 169 Fed. 573; Columbia Box & Lumber Co. v. Drown, 84 C. C. A. 269, 156 Fed. 462; Baltimore & O. R. Co. v. O'Neill, 108 C. C. A. 115, 186 Fed. 15, see Rochford v. Pennsylvania Co. 98 C. C. A. 105, 174 Fed. 84; Missouri, K. & T. R. Co. v. Collier, 88 C. C. A. 127, 157 Fed. 347.

Where a motion to instruct a verdict is sustained, the verdict should be returned and entered as directed. Bowman v. Atchison, T. & S. F. R. Co. 106 C. C. A. 651, 184 Fed. 699, 700; Hodges v. Easton, 106 U. S. 408, 27 L. ed. 169, 1 Sup. Ct. Rep. 307. See Moore v. Petty, 68 C. C. A. 306, 135 Fed. 668.

When Motion to Direct Verdict is Waived.

The motion to direct a verdict is waived if no exception is taken, or where evidence is offered by the defendant after his motion is made and overruled. Fidelity & C. Co. v. Thompson, 11 L.R.A. (N.S.) 1069, 83 C. C. A. 324, 154 Fed. 484, 12 Ann. Cas. 181; School Dist. No. 11 v. Chapman, 82 C. C. A. 35, 152 Fed. 887; Newport News & M. Valley Co. v. Pace, 158 U. S. 36, 39 L. ed. 887, 15 Sup. Ct. Rep. 743; National Bank v. Schufelt, 76 C. C. A. 187, 145 Fed. 509; Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 36 L. ed. 405, 12 Sup Ct. Rep. 591.

When Motion to Direct a Verdict Should Not Prevail.

It should be the first care of the court to preserve the right of jury trial as guaranteed by the Federal Constitution to every litigant. So withdrawing a case from the jury by instructing a verdict should never be done, unless the causes as set forth above are indisputably present. So the following rules in passing upon a motion to instruct a verdict should control the court:

First. If the plaintiff has introduced evidence bearing materially on the issues, which would be sufficient, if uncontradicted, to sustain a verdict, then no amount of contradictory evidence would justify the court in taking the case from the jury and instructing a verdict. Rochford v. Pennsylvania Co. 98 C. C. A. 105, 174 Fed. 81.

Or, Second. Where the evidence is of such a character that reasonable men would differ as to the conclusions to be drawn from it. Louisville & N. R. Co. v. Roberts, 101 C. C. A. 202, 177 Fed. 923, 924, and cases cited; Columbia Box & Lumber Co. v. Drown, 84 C. C. A. 269, 156 Fed. 459.

Third. The mere fact that there is a preponderance of evidence on one side or the other, in favor of the party moving for a verdict, does not require the judge to take the case from the jury, even though, it might justify a new trial because of the preponderance of evidence against the verdict. Rochford v. Pennsylvania Co. 98 C. C. A. 105, 174 Fed. 81; City & Suburban R. Co. v. Svedborg, 194 U. S. 201, 48 L. ed. 935, 24 Sup.