# Fireman's Fund Insurance Company, a Corporation v. Aalco Wrecking Company, Inc., a Corporation

> Court of Appeals for the Eighth Circuit · October 16, 1972 · 466 F.2d 179

URL: https://www.frixlaw.com/law-library/cases/9458656

## Case

- **Full name:** FIREMAN’S FUND INSURANCE COMPANY, a Corporation, Et Al., Appellants, v. AALCO WRECKING COMPANY, INC., a Corporation, Appellee
- **Court:** Court of Appeals for the Eighth Circuit
- **Decided:** October 16, 1972
- **Citations:** 466 F.2d 179
- **Precedential status:** Published
- **Opinion:** On rehearing by Mehaffy
- **Judges:** Mehaffy, Lay, Heaney, Stephenson
- **Cited by:** 146 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9458656

## How later opinions describe it (automated extraction)

- declining to remand for consideration of motion for new trial where judgment as a matter of law was erroneously entered because evidence was such that reasonable jurors could have differed and there was no "significant weight factor favoring the defendant”
- stating the applicable standard for a new trial is whether a miscarriage of justice would otherwise result

## Opinion text

ON PETITION FOR REHEARING EN BANC
MEHAFFY, Circuit Judge,
joined by MATTHES, Chief Judge, dissenting from the denial of rehearing en banc. *
I respectfully dissent from the denial of the petition for rehearing en banc.
I disagree with that portion of the majority opinion which reversed the trial court’s order granting a new trial and restored the verdict of something in excess of $200,000.00. In my view, the panel’s holding in effect overrules a deeply embedded rule of law in this circuit and ignores the teachings of the Supreme Court in cases of this nature.
The Eighth Circuit Rule.
In this circuit a “motion for new trial is addressed to the judicial discretion of the trial judge and will not be reversed except for a clear abuse of that discretion.” Altrichter v. Shell Oil Co., 263 F.2d 377, 380 (8th Cir. 1959) (emphasis added); Bates v. Hensley, 414 F.2d 1006 (8th Cir. 1969). The rule has also been stated that the “granting of a new trial is a matter within the sound discretion of the trial judge and unless that discretion patently has been abused, his ruling is not subject to review.” Silverthorn v. Hennigan, 439 F.2d 704, 705 (8th Cir. 1971) (emphasis added). The opinion in Altrichter gives some insight as to what these words “clear abuse” mean. In that case we held that the trial court could weigh the evidence, disbelieve witnesses and grant a new trial even where there is substantial evidence to sustain the verdict. No inferences are required to be drawn in favor of the verdict or the party against whom the motion is directed. The trial judge may grant a new trial where, in his own judgment, it is necessary to prevent a miscarriage of justice. I note the language of Barron & Holtzoff, quoted with approval in Altrichter, supra, at 380: “It is his right, and indeed his duty, to order a new trial if he deems it in the interest of justice to do so.”
Examples of Facts which Clearly Distinguish This Case from Those Cited in the Panel’s Opinion.
The panel relied upon and quoted extensively from Captain Klein’s testimony. His testimony was objected to as speculative and calling for a conclusion that the fire department would probably have stopped the fire before it caused plaintiffs’ losses if he had received an alarm ten to fifteen minutes earlier. The panel’s statement that Klein’s testimony was not objected to is clearly wrong. Although the trial judge overruled the objection, he assigned this ruling as one of his grounds for granting a new trial. Captain Klein had testified that the major portion of the fire was in building No. 11 behind the freight loading area of that building, that the fire was above the canopy of the northernmost bridge and just starting on the bridge, and that the bridge was not engulfed in flames at the time of the arrival of the fire department. He further testified that his men were putting water on one of the bridges until he ordered them out of the area. His testimony was to the effect that only building No. 11 was “heavily involved” at the time of their arrival. His testimony as to whether the bridge was on fire is controverted by the *189 testimony of Captain Berne of the fire department, fireman Holland, and a railroad employee, Anielak, who had reported the fire and arrived at the scene before the firemen. Fireman Holland testified that he was one of the firemen on the ramp with the fire hose, that the water would not reach the bridge, that the fire eventually crossed the bridge into the buildings containing plaintiffs’ insureds’ property. Mr. Cohn, an expert witness, testified that the fire started, not in building No. 11, but “towards the east end of the northernmost bridge.” Evaluating the evidence according to the analysis of the trial court, Captain Klein’s opinion as to whether the fire department could have stopped the fire was based on untrue facts and was speculative and conclusionary.
The trial court also stated that the evidence was insufficient to support a finding of negligence. Plaintiffs’ proof was to the effect that a watchman should have been at this site because the site could not be made secure against entry. While there is some evidence to support this contention, much of plaintiffs’ evidence relates to buildings 11 and 12. Building 12 was in reality nothing but a wall with some supporting timbers. There was nothing to secure. Much of plaintiffs’ evidence tending to show the unsecured condition of building 11 related to the first and second floors. The first floor was in fact a ground level railroad yard, and there was testimony that it was not considered part of the building. The second floor was an open loading area for trucks constructed of steel and concrete. It is apparently this area into which Captain Klein drove his ear. There was nothing to secure except a large open area. There was ample testimony that passageways from these areas into the buildings were secured. Again viewing the evidence according to the analysis of the trial court, it is difficult to see any clear abuse of discretion in ordering a new trial on this point.
Further, a witness for one of the plaintiffs testified in effect that after collecting the insurance on some of his property he sold the insured goods at a price higher than their cost. He thus showed a profit instead of a loss. No damages should have been allowed on this point, and the trial court’s order for a new trial should be sustained on this point.
By setting out the above, I have not implied that those points are the only ones to be considered. Rather, they are examples which support a finding that there was no clear or patent abuse of discretion in ordering a new trial. 1
The Supreme Court’s Teachings.
The panel’s opinion relies on and quotes from Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29 , 64 S.Ct. 409 , 88 L.Ed. 520 (1944). Tennant , however, did not even consider a motion for new trial, but involved only a judgment n.o.v. granted by a court of appeals. This was an opinion by Mr. Justice Murphy for a divided Court. Tennant should be considered in the light of other Supreme Court cases such as Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474 , 53 S.Ct. 252 , 77 L.Ed. 439 (1933); United States v. Socony-Vacuum Oil Co., 310 U.S. 150 at 247 , 60 S.Ct. 811 , 84 L.Ed. 1129 (1940); United States v. Johnson, 327 U.S. 106 , 66 S.Ct. 464 , 90 L.Ed. 562 (1946), which did deal with motions for new trial. See also Neely v. Martin K. Eby Const. Co., 386 U.S. 317 , 87 S.Ct. 1072 , 18 L.Ed.2d 75 (1967); Neese v. Southern Ry., 350 U.S. 77 , 76 S.Ct. 131 , 100 L.Ed. 60 (1955).
As Justice Brandéis said in Fairmount Glass Works, supra:
“The rule that this Court will not review the action of a federal trial court in granting or denying a motion for a new trial for error of fact has been settled by a long and unbroken line of decisions; and has been frequently applied where the ground of the motion was that the damages awarded by the jury were excessive or were inadequate. The rule precludes likewise a review of such action by a circuit *190 court of appeals.” (Footnotes omitted.) 287 U.S. at 481 , 53 S.Ct. at 254 .
In the same opinion Justice Brandéis went on to say:
“Appellate courts should be slow to impute to juries a disregard of their duties, and to trial courts a want of diligence or perspicacity in appraising the jury’s conduct.” Id. at 485 , 53 S.Ct. at 255 .
Similarly the Court stated in United States v. Johnson, swpra, that:
“[I]t is not the province of this Court or the circuit court of appeals to review orders granting or denying motions for a new trial when such review is sought on the alleged ground that the trial court made erroneous findings of fact.” 327 U.S. at 111 , 66 S. Ct. at 466 .
The Court then went on to conclude that:
“The circuit court of appeals was right in the first instance, when it declared that it did not sit to try de novo motions for a new trial. It was wrong in the second instance when it did review the facts de novo and order the judgment set aside.” Id. at 113 , 66 S.Ct. at 467 .
Conclusion.
The panel claims in its conclusion that it is hard pressed to say that a miscarriage of justice has taken place in the first trial. The only sure way to prevent a miscarriage of justice in this case is to grant the rehearing and sustain the trial court’s order granting a new trial. This is a complicated case with a lengthy record and it clearly requires something more than a weighing of the evidence when the trial court has concluded that it mistakenly admitted testimony which could well have influenced the jury. The effect of it cannot be ascertained except by a new trial.
The rationale of avoiding additional burdens for the court dockets, used as one of the reasons for reversing the new trial order, is misleading. There is no way to predict how much additional work will be created- if the rule of this circuit in such matters is abrogated. If we must follow the panel’s new rule, it will place this court in the role of trying cases de novo for which we are not and cannot be equipped. Furthermore, this new appellate capacity threatens to erode the factfinding responsibility of the district courts.
Finally, I note that the panel’s opinion finds there was an abuse of discretion. Certainly it is not an abuse of discretion to grant a new trial when inadmissible testimony is admitted. Now we can assume that every party litigant in a case where there is a new trial granted by the district court will contend that there is a mere abuse of discretion on the trial court’s part; hence, the trial court’s action should be reversed and judgment entered here.
For the reasons stated, I would grant the petition, uphold the trial court and send this case back to that court for a new trial.
Judge Gibson did not participate.
. The majority’s opinion finds only that “it was abuse of discretion to grant a new trial.’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9458656. Public record. Not legal advice.