3

itself

Nerdict and nihainorbarella i Reghiam,dioided in 1935 the Supreme Courtypkekhthis practicqqas nobviolativierof the Seventh Amendment, at least where the parties bids not affirma tively object. However, in Aetna Insurance Co. v. Kennediyot decided in 1937, a contrary result was reached where the trial judge had not expresii reservelt decision on the motion to direct. Then, in 1938 the supreme Court is empt US & 197 Baff shres 19e to promulgated a rule of procedure to the effect that the trial should in all cases be deemed to have reserved decision so that the practice upheld in the Redman Case became, automatic in the federal case. The rule, followson gbuj gridem Tytr6q ynivom od roì tgbuj to vrtne et torib to -ibs 70 FDHRABRES COPROCEDU1938 potom s to no grizist to 920ing a to vrs22999 od ton lade obrv_b91597 DRULE 50 MUHON FOR A DIRECTED' very noon at waiver batagrib s tot noon to thingbut redtedw to 11 Preston of Decision on Motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the courtoisigdeemed to have submit› ted the action to the jury subject tollater determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon get aside and toi haverjatignient entered in accordance with His motor the 2 ai! rected verdict; brifa verdict was not returned sucht party, within 10 days after the jury has beef discharged, nidy move for judgment aument in accordance with his motion for a) move a 20160919 34 bisone in chill a strected verdict A motion for a new trial may b be joined with this motion, ora new trial may be prayed for in the alternative. a verdict was returned the bourt may allow the judgment to stand or may reopendthe judgment: and Bitheriørderodengwotnabur direct the entry of judgment as if the requested Iverdiet. Hrad been directed. If courdemaly direct the entry of judgment as had been directed or may order a new trial..

9

may

a

verdict was returned, the the requested verdict

abcor won fi 26 mis97

The decision in the Sidcup case has thus been circumvented, but by Renz Vemmiscent by an effier period in a spatio Aistory He Hext step may Wen be an out-and-out recognition that My pre il munglo-American legal the Slocum case was wrongly decided, and an adoption by the Supreme Court of a clean-cut procedure for judgment on the evidence livio to zoluЯ of nombпomA bozoqor¶ to fis70 visnimilər¶ ba9996 ! For another method of avoiding the Slocum) decision see Northern R Co. 2. Page 274 US 65 (1927) (Massachusetts, practice, U. S.

they find for the plaintiff, to

"

directing the verdict for the de fendant be held as of 101 10 BET WOL 6, 101 enolom an alternative 265D 991go that the plaintiff was not entitled to recover). 112293 U. S. 634,2tnsmibn9m7. bzogor¶ 16 tis visnimilor¶ bao992 &

3 See Millar, "Notabilia of American Civil Procedure 1887-1937," 50 Harv.

L. Rev. 1017, 1048-1051 (1937).

4301 U. S. 389.

5 Cf. p. 7, supra.

notwithstanding a verdict. The Advisory Committee on Rules of Civil Procedure appointed by the Supreme Court has recently recommended a change in Rule 50 (b) to make it read in part as follows: 1

"(b) Motion for Judgment. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict at the close of all the evidence may move to set aside the verdict and any judgment entered thereon and for judgment in accordance with his motion for a directed verdict. The court may allow the verdict or judgment to stand or may set it aside and either order a new trial or direct the entry of judgment for the moving party. The making of a motion for judgment in conformity with the motion for a directed verdict shall not be necessary for the purpose of raising on review, the question whether the verdict should have been directed or whether judgment in conformity with the motion for a directed verdict should be entered. If no verdict is returned, the court on motion made within 10 days after the jury has been discharged may direct the entry of judgment as if the requested verdict had been directed or may order a new trial." 2

The Advisory Committee said: 3

"The provision in the present rule that the court 'is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion' to direct, resulted from an over-meticulous effort to stay within the limits of Baltimore & Carolina Line v. Redman (1935) 295 U. S. 654. It is an awkward fiction. The Advisory Committee thinks it should be eliminated, and that it is not a denial of the constitutional right to jury trial to grant a judgment, notwithstanding a verdict, whether or not the trial court reserved or may be 'deemed' to have reserved the question of law raised by a motion to direct. . . . If we are wrong about this and such a departure from Slocum v. New York Life Ins. Co. (1913 288 [228] U. S. 364, cannot be sustained, this part of the rule should remain as it now reads."

If the amendment to Rule 50 (b) recommended by the Advisory Committee is adopted by the Supreme Court, the federal practice on this point will be brought into accord with the more modern state practice.

1 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 54-55.

2 The remainder of the new Rule 50 (b) as proposed by the Advisory Committee deals with alternative motions for a new trial or for judgment. Cf. Montgomery Ward & Co. v. Duncan, 311 U. S. 243 (1940).

3 Second Preliminary Draft of Proposed Amendments, supra note 1, at 56-57.

MORGAN v. CHICAGO, MILWAUKEE & ST. PAUL
RAILWAY CO.

SUPREME COURT, WISCONSIN. 1892.

83 Wisconsin 348.

[ON August 31, 1888, the plaintiff commenced an action against the defendant claiming damages for three separate fires alleged to have been caused by the defendant on the plaintiffs' lands, as follows: For a first cause of action, $300 damage by a fire on July 7, 1886; for a second cause of action, $10,000 damage by a fire August 7, 1886; and for a third cause of action, $5000 damage by a fire July 30, 1887. At the trial, the judge directed a verdict for the defendant on the second cause of action, on the ground that there was no sufficient evidence of negligence on the part of the defendant. The jury found a general verdict for the plaintiff for $4000, and judgment for that amount and $333.38 costs was entered against the defendant, and duly paid by it.

On May 20, 1889, the plaintiffs commenced this action for damages to their lands by a fire alleged to have been caused by the defendant on their land on August 7, 1886, "being the same fire and the same damages claimed in the second cause of action" in the former suit. The defendant answered, setting up the judgment in that suit in bar of the action. At the trial, the plaintiffs introduced evidence tending to prove the allegations of their complaint. The defendant offered in evidence the judgment roll in the prior suit. The court directed a verdict for the defendant, and entered judgment therein. The plaintiffs appealed.] 1

CASSODAY, J...

1

We must treat the general verdict returned, so far as the second cause of action is concerned, as a verdict directed in favor of the defendant. That presents the question whether a judgment on a verdict so directed in favor of the defendant is a bar to another action between the same parties for the same cause of action. It will be observed that such verdict was so directed in favor of the defendant because the evidence was insufficient to support a verdict in favor of the plaintiffs upon the second cause of action alleged. Nevertheless the issue upon that cause of action was tried upon the merits, and the determination thereof resulted in a verdict in favor of the defendant; and hence the judgment thereon is necessarily a bar to this action. Dick v. Webster, 6 Wis. 481; Kalisch v. Kalisch, 9 Wis. 529; Van Valkenburgh v. Milwaukee, 43 Wis. 574;

1 This statement is condensed from that in the original report.

2 So much of the opinion as discusses the character of the verdict rendered in the prior case on the second cause of action is omitted.

Lawrende lv. Milwauked, 45 WWi!!/309,D/Phil Pule maintains even where the essential facts afe stipulated by the parties, and only "for the purpose of the trial." Ibid., Manifestly the rule is the same where, as here, verdict is rected upon the undisputed evidence, and judgment entered thereontherwise every plaintiff who fails to prove the cause of action he has alleged, and is, therefore, defeated, jerusylibertyɔkombringnannew autoip for the same Ecause of action, again the sante defendant tot 299susb gainislɔ tasbarth i -lot as abus 'eftitnislq sdt no tnsbпstob 9lt vd bees 1990 97 Bathan Count. The sind more of the circuit courtrit affiørberk tol tagut i syd amb 000,012 nits to a br9 & Toì; 088! TRTON se : dissents 7 9 6 7 92med 00022 moitos to ensɔ bridt s rot bas ; 0881 ‚V isbnɔteb et tot tɔibrev s bɔtɔɔtib egbuj edilsint 9dt 1A 5881,08 -Mue on sw 979dt tedt bawory at nooits to 92169 bп0592 9ft no ¿wj 9dT Jasbastab art to SETIAN A conegilyen to en9biva traiɔ · tot tasugbuj bas ,00042 701 Aitaislq edt tot tɔib19v [679099 & basoł Jasbastab di taNSTRUCTIONS TⱭ THEƐJURY bas tavoms ted .ti vd bisq vlub bas -usb tot noites iSTGERRITSCHE£8810 vs пO

-abot vd by ssd, tv 3 et bazelle 238 vygenel tight of 2996

ONSIN.

ni

the

here was

[afecover balance gitaan aged to be due the plaintiff from anting & Well! The answer denied any indebted Rest, and legea breach of contract by the plaint a'conflict in the evidence at the trial as to whether the pral co The b9f29th rèked on was made with the plaintiff or with the plaintiff and his brother as partners, and also as - If the oral contract.'

The plaintiff recovered a verdict for $47 and judgment was entered thereon.] 2

No

91 26 1st 92 bemutar tib9v 1679499 t 16911, I to TAYLOR Trosori Albe the course had argued the case, to the TAXEPRui Io139rip After jury, the learned circuit judge gave no charge, or instructions to the jury but made the following remark have no charge to give you, gentlemen, Conduct the jury to their room exception was taken at the tune by the learned counsel for the defendant to the declination of the learned judge to instruct, the jury; neither then begalls noites to 2 b2 t goqu aftitaisla ed to rost, ni See Restatement Judgments (1942) $52 Comment b 2 Freeman, Judg 9265 ƒ&M) noqu quaai '97ƒ 2291911)1979%. ments (5th ed. 1925) 725 Declaration into saffurgit quæ påndare's legligetidempi that plaintiffisant Barsuing in personand but besindab forendto Repti cation traversing pintangy. Directed/verdict and indement for defendant, In a later suit on the same cause of action, defendant pleads the judgment in the prior suit. Is the plea good? See Harrison v. Hartford Fire Ins. Co. 102 Ia. 112. (1897).

1

nogi

2 This statement is eandensed from the opinioncsbroɔ zi tromotete aidT! bo®Only sól much ofìthe opinion is givensifelatesoinigheɔfailureluftnthetfial judge to instruct the jury i moitos to emɔ boɔ92 it no es roig ɔrið mi

g

tonstruct them generally, or equest should be given them, fan-making

new trial the barned, counsel for the defendant assigns this as a reason for granting the same, in the following language, as his ninth reason: "The court erred in not instructing the

learned counsel "duty of the trial judge, to

for the appellant claims that it the

25

The case, whether

requested to do so or not; and he cites sec. 2853, S ast imposiitgosuch dat rapenenhe tiakijudge. niWelare clearly of the opinionithatothisisectitaniwas enacted for the purpose of requiel ing she's instructions when given tot budgiver sin, kawriting, unless tive givingtofthim showriting, avasi waived by the parties) and was unót edadfer for theupuposeyofs makingį inrithetcutylokathq>trial julgeïcò instraat bo jugyoltanyanseverbotaseoqBhistasis held by this courtsin Heptor. State 58 Wisb1⁄449hes samtele adopted Nebolork.ot Hauptsa Robiniaanyob Rubyɖ Namba), 1121 ; Græser Stebbragem025. NwYmbb5[sibt was falscheldsthat,gnitixception/för Busattooinstruobathe bjurga as requestedziby the counselamusti be taken on the trialinooraldr to beizvailables įtduthalparty complaming of such refusal. Murphy a Martin, 58, Wis, 279, Gollins Shan& non Wis 441 sofiq Staff W140 Adamsız. McKay, 63,, Wis.lt 408 Gagdner & Cooch, & Me 48mitWe think it 4& ог Keby shear that the defendant waived any right to insist upon the rial judge instructing the jury, by not, taking, excention to his de clining to give instructions. Had he desired the judge in instruct the jury, he should have either made a general request that the judge instruct the jury upon the law of the case, or have offered specific instructions and requested the judge to give the same to the jury. Having done neither/in this case, he must be deemed to haveqassented to submitting the case to the jury without instructionisse niv Bf the judgment of the circuit court is affirmed 201 sdf noqu maris fioitzeup 155 90102 10 9263 90 10 92609 1615042 - tem sidue at nou in 194079 6 9267 196 9 al Isit wal1 Sec.128535&&Bot Annii Stats providesibUpon the trial of everly Laction the judge presiding shalt before givings the same to the jury, reduceɖto writing andƒgino an{written his charge and instructions to the jury; and alb further and părtionlar,instructions given them when they shall be tuinvafiter having once chez tited to deliberate,qunless ( a writtentæharge shalwaived by counsel at the coins mencement at the trial; and except that the chargeqordinstructions may beade liveredzionally when taken down by, the official phonographio; reportersofthe court...." NOTH BY THE COrgno s st esd viuj edt tødt 10976996 zi The substance of this statute is nowLeontañedvifWIs, Stat. Ɛ(1943)/§ 270.21, which, however, also provideóit The judge shall charge, the jury al art Fine Art & Gen, ins, G9.418974 Afcq68, (H, I), Halsbury; SA E. (SAUT 69.639 who are complaining of yon direction of the judge, or that he did not leave a question to the jury, if you had an opportunity of asking him to do it and you abstained from asking for it, no Court would ever have granted you a new trial; for the obvious reason that if you thought you had got enough you were not allowed to stand aside and let all the expense be incurred and a new trial ordered simply because of your own

2

9