Petition for Writ of Certiorari — Fairmont Glass Works v. Cub Fork Coal Co.

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No. 314 ' - ahi

IN THE panes Bs

Supreme Court of the United States

OCTOBER TERM, 1932.

4

FAIRMOUNT GLASS WORKS,

Petitioner,

v.

CUB FORK COAL COMPANY AND PARAGON

COLLIERY COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

CIRCUIT COURT OF APPEALS FOR THE

SEVENTH CIRCUIT, WITH

SUPPORTING BRIEF.

~ Henry H. Hornsrook,

Attorney for Petitioner.

CHARLES REMSTER,

ALBERT P. SMITH,

‘PauL Y. Davis,

Kurt F. PANTZER,

ERNEST R. BALTZELL,

Of Counsel.

E. A. HARDIN PRINT, INDIANAPOLIS, IND.

tee. FEE NG ALLE OREO ELLIE PORES LIE EE FE EIIRLE AED 8 SPLOT ON canal

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SUBJECT INDEX.

PETITION— Page

I. SUMMARY STATEMENT OF THE MATTER

co ee 1

II. REASONS RELIED UPON FOR ALLOWANCE

ON ea ES ee 3

BRIEF—

I. Opinion of the Court Below______ | 6

II. Jurisdiction ________ Bits seceesteie ictuuans co 6

III. Statement of the Case 6

IV. Assignments of Error... 7

V. Summary of Argument... 7

Argument

One. By the decision in question facts tried

by a jury have been “reexamined other-

wise than according to the rules of the

common law” in violation of the Seventh

Amendment, as interpreted by this

RE ee aes a eee ae 9

Two. The decision in question also conflicts

with the practice settled by many de-

cisions of this Court applying this prin-

ciple, to the effect that a trial court’s

action in overruling a motion for new

trial is not reviewable for error of fact

in an appellate court of the United %

en NEL SER 16 3

Three. The decision also conflicts with de-

cisions of the Circuit Court of Appeals

of the Second, Third, Eighth and Ninth

Circuits, “ying the power of an appel-

late court Lo reexamine facts tried by

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ALPHABETICAL TABLE OF CASES AND

STATUTE CITED.

CASES. Page

American Trading Co. v. North Alaska Salmon

+ Co., (9th C. C. A., 1918), 248 Fed. 665______ 5,

Barr v. Gratz’s Heirs, (1819) 4 Wheaton 213__4,

J. W. Bishop Co. v. Shelhouse, (4th C. C. A., 1905)

i a RL Se 4,

Browne v. Clark, (1845) 4 How. 4, 15-_______ 4,

Chicago, Burlington & Quincy Railroad Co. v. Chi-

cago, (1896) 166 U. S. 226, 246 ___3, 13, 14,

Chicago, M. & St. P. Ry. Co. v. Heil, (8th C. C. A.,

neett, ee ee. Gee, O20 ce 5,

Cobb v. Lepisto, (9th C. C. A., 1925), 6 Fed. (2d)

hn SS aS Se

Cub Fork Coal Co. v. Fairmount Glass Works, 33

Fed. (2d) 420

Doswell v. De La Lanza, (1857) 20 How. 29, 32. ry

Glenwood Irrigation Co. v. Vallery, (8th C. C. A.,

O16), S06 Fea. 46¢____________________ 18,

Holder v. United States, ‘ou’ 150 U.S. 91, 92_4,

James v. Evans, (8rd C. C. A., 1906) 149 Fed.

aa Dc al SEA are 88,

Keith v. Abrams, (3rd C. C. A., 1930), 43 Fed.

es ges we eae 4,

Marine Ins. Co. v. Young, (1809) 5 Cranch 187. 4,

Miller v. Maryland Casualty Co., (2nd C. C. A.,

1930), 40 Fed. (2d) 463... an"

Mills v. Smith, (1868) 8 Wall. 27, 32____4, 16,

Parsons v. Bedford, (1830) 3 Peters 433, 447-

a ee a ea eee 3, 10,

Pomeroy’s Lessee v. Bank of Indiana, (1868) 1

Wall. 592, 593-594 __ Oba EXE 4,

17

16

17

16

18

17

18

a

Page

Pugh v. Bluff City Excursion Co., (6th C. C. A.,

Eee go PE ect ey ie 18

3, 11, 12

Smith v. United States, (4th C. C. A., 1922) 281

WE TI sige ceiiortr ce saomilict pecs ace tens Ae et 20

Stetson v. Stindt, (3rd C. C. A., 1922) 279 F. 209

18, 19

Warner v. Norton, (1857) 20 How. 448, 461___4, 16

Wilson v. Everett, (1890) 139 U. S. 616, 621___3, 12

Zacharie v. Franklin, (1838) 12 Peters 151, 163_ 4, 16

STATUTE.

United States Code, Title 28, Section 861b______ 9

EER CR SOE EO

RRMA Hema R aE gs aneRT mina

AERO

ERY are IW TIERCE

a SATO OR IRN

FEMI SOM RES A oF GN HY ———

IN THE

Supreme Court of the United States

OCTOBER TERM, 1932.

FAIRMOUNT GLASS WoRKS, )

Petitioner,

Vv. No.

CuB FoRK COAL COMPANY AND

PARAGON COLLIERY COMPANY,

Respondents. |

~~

PETITION FOR WRIT OF CERTIORARI TO THE

CIRCUIT COURT OF APPEALS FOR THE

SEVENTH CIRCUIT, WITH

SUPPORTING BRIEF.

May it Please the Court:

The petition of Fairmount Glass Works respect-

fully presents to this Honorable Court:

REIL Ey THREE EN EE PAN LN ee Se ETE ER a Dee

I.

SUMMARY STATEMENT OF THE MATTER

INVOLVED.

This was an action at law for damages for an al-

leged breach of an instalment contract for the pur-

chase and sale of coal, brought in the United States

SE NORE NIA ELS 6

POR IE EAA EIF act PZT Wee

2

District Court for the Southern District of Indiana

by respondents, sellers, corporations of West Vir-

ginia, against petitioner, buyer, a corporation of In-

diana (R. 2-11). Petitioner answered by denial (R.

31), counterclaim (R. 21-24), and certain affirma-

tive defenses (R. 31-37). Of these defenses, at least

one, paragraph V alleging misrepresentation (R. 35-

36), was for the jury by express direction on a pre-

vious appeal. Cub Fork Coal Co. v. Fairmount Glass

Works, 33 Fed. (2d) 420. At the last trial evidence

on this issue was “similar” (R. 153). The issues

were submitted to a jury which returned a verdict

for respondents in the sum of One Dollar (R. 38).

Respondents moved to set aside the verdict and for

a new trial, which motion the trial court overruled

(R. 38, 130), and entered judgment on the verdict

(R. 39).

On respondents’ appeal to the Circuit Court of

Appeals for the Seventh Circuit, that court reversed

the judgment of the District Court (R. 155-156), on

the sole ground that ‘the verdict should have been set

aside and a new trial ordered on appellants’ (respond-

ents’) motion,” assigning as reason that “on any hy-

pothesis appellants were entitled to recover over $18,-

000.00.” (R. 153-154.)

No error was found in any ruling or instruction

of the court prior to verdict. In directing reversal

it was assumed that the jury had correctly determined

in respondents’ favor every issue except that as to

the amount of damages, and the new trial ordered

was limited to the issue of damages. (R. 153.)

3

This petition seeks a review of the above men-

tioned judgment of the Circuit Court of Appeals for

the Seventh Circuit. The opinion is found in the rec-

ord at pages 152 to 155. It is not yet published.

Il.

REASONS RELIED UPON FOR ALLOWANCE

OF THE WRIT.

First: By said decision, the Circuit Court of Ap-

peals for the Seventh Circuit, has assumed to reexam-

ine the verdict of a jury otherwise than according to

the rules of the common law, in conflict with Article

7 of the Articles in Amendment of the Constitution

of the United States, as interpreted by this Court, and

in conflict with the following applicable decisions of

this Court.

Parsons v. Bedford, (1830) 3 Peters 433,

447-448;

Railroad Co. v. Fraloff, (1879) 100 U.S. 24,

31;

Wilsow v. Everett, (1890) 139 U. S. 616,

621;

Chicago, Burlington & Quincy Railroad Co.

v. Chicago, (1896) 166 U. S. 226, 246.

Second: By assuming to reverse a judgment at

law rendered by a Federal Court for alleged error in

overruling a motion for a new trial, said Cireuit

Court of Appeals for the Seventh Circuit has rendered

PRE yeas 2

#3

4

a decision in conflict with the following applicable de-

cisions of this Court, viz.:

Marine Ins. Co. v. Young, (1809) 5 Cranch

Pei Gratz’s Heirs, (1819) 4 Wheaton

Pe cod v. Franklin, (1838) 12 Peters 151,

RR ». Clark, (1845) 4 How. 4, 15;

Doswell v. De La Lanza, (1857) 20 How.

29, 32;

Warner v. Norton, (1857) 20 How. 448,

461;

Pomeroy’s Lessee v. Bank of Indiana,

(1863) 1 Wall. 592, 593-594;

Mills v. Smith, (1868) 8 Wall. 27, 32;

Holder v. United States, (1893) 150 U. S.

91, 92.

Third: By assuming to reverse a judgment at law

rendered by a Federal Court upon the verdict of a

jury solely because of alleged error of fact in the ver-

dict and alleged error of the trial court in overruling

a motion for new trial, said Circuit Court of Appeals

for the Seventh Circuit has rendered a decision in

conflict with the following decisions of other Circuit

Courts of Appeals, viz.:

Miller v. Maryland Casualty Co., (2nd C. C.

A., 1930), 40 Fed. (2d) 463;

Keith v. Abrams, (8rd C. C. A., 1930), 43

Fed. (2d) 557;

J. W. Bishop Co. v. Shelhouse, (4th C. C. A.,

1905), 141 Fed. 6438;

5

Chicago, M. & St. P. Ry. Co. v. Heil, (8th

C. C. A., 1907), 154 Fed. 626, 629;

American Trading Co. v. North Alaska

Salmon Co., (9th C. C. A., 1918), 248

Fed. 665.

WHEREFORE, your petitioner respectfully prays

that a writ of certiorari be issued out of and under

the seal of this Honorable Court, directed to the United

States Circuit Court of Appeals for the Seventh Cir-

cuit, commanding that Court to certify to this Court

for its review and determination, on a day certain to

be therein named, all proceedings in the case num-

bered and entitled on its docket No. 4554, Cub Fork

Coal Company and Paragon Colliery Company, A ppel-

lants vs. Fairmount Glass Works, Appellee, and that

the judgment of said Circuit Court of Appeals therein

be reversed by this Honorable Court and the judg-

ment of the District Court of the United States for the

Southern District of Indiana be affirmed, and that

your petitioner may have such other and further re-

lief in the premises as to this Honorable Court may

be meet and just, and your petitioner will ever pray.

FAIRMOUNT GLASS Works,

By HENRY H. HorNBROOK,

Attorney for Petitioner.

CHARLES REMSTER,

ALBERT P. SMITH,

PAUL Y. Davis,

KuRT F. PANTZER,

ERNEST R, BALTZELL,

Of Counsel.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI.

I.

The opinion of the Circuit Court of Appeals for

the Seventh Circuit is found in the Record at pages

152-155. It has not yet been published.

II.

JURISDICTION.

The date of the conditional judgment of the Cir-

cuit Court of Appeals was June 4, 1932. (R. 155-

156.) Final judgment of reversal was rendered July

9, 1932, (R. 156). The decision affirms that part of

the verdict determining petitioner’s liability, and

limits the new trial ordered to the single issue of

damages (R. 156-157).

III.

STATEMENT OF THE CASE.

Almost all essentials necessary to a consideration

of this petition are set out in the petition under the

“Summary Statement” (Petition, p. 1). As there

pointed out, the issue of misrepresentation submitted

to the jury (R. 118-119) under the express mandate

of a previous appeal (33 Fed. (2d) 420) would have

7

authorized the jury to find a verdict for petitioner.

For supporting evidence see R. 73, 75, 76-77.

It is believed that a discussion of the evidence as

to damages is irrelevant. The issue of damages was

submitted to the jury (R. 121).

IV.

ASSIGNMENTS OF ERROR.

The assignments of error are set forth in the peti-

tion under the heading of “Reasons Relied on for Al-

lowance of the Writ” (Petition, pp. 3-5).

V.

SUMMARY OF ARGUMENT.

ONE.

By the decision in question, facts tried by a jury

have been “reexamined otherwise than according to

the rules of the common law” in violation of the Sev-

enth Amendment, as interpreted by this Court.

Two.

The decision in question also conflicts with the

practice settled by many decisions of this Court ap-

plying this principle, to the effect that a trial court’s

action in overruling a motion for new trial is not

reviewable for error of fact in an appellate court of

the United States.

5

, ccs |

8

THREE.

The decision also conflicts with decisions of the

Circuit Courts of Appeals of the Second, Third,

Fourth, Eighth and Ninth Circuits, denying the

power of an appellate court to reexamine facts tried

by a jury.

9

ARGUMENT.

ONE.

By the decision in question facts tried by a jury

have been “reexamined otherwise than according to

the rules of the common law” in violation of the Sev-

enth Amendment, as interpreted by this Court.

While this appellate proceeding was denominated

an “appeal,” pursuant to Act of 1928 as amended, it

was governed by the same limitations as formerly

governed writs of error (U. S. C. A., Title 28, See.

861b).

The action of the Circuit Court of Appeals in the

present case is apparent from the opinion, without

elaboration. No error was found in any proceeding

of the trial court prior to verdict. The Appellate

Court examined the evidence, concluted that the jury

had made an error of fact in assessing the amount of

respondent’s recovery, and reversed the case solely

because the trial court had refused to set aside this

verdict and award a new trial. It is submitted that

this constitutes the reexamination of facts tried by

a jury otherwise than according to the rules of the

common law, which is expressly forbidden by the Sev-

enth Amendment.

The Seventh Amendment reads as follows:

“In suits at common law, where the value

in controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and

no fact tried by a jury shall be otherwise re-

examined in any Court of the United States,

than according to the rules of the common law.”

v SOMOS

10

The effect of the phrase “no fact tried by a jury

shall be otherwise reexamined in any Court of the

United States than according to the rules of the com-

mon law,” was early established by this Court in its

opinion in Parsons v. Bedford, 3 Peters 433, an opin-

ion written by Mr. Justice Story in 1830. The out-

standing legal scholarship of Justice Story makes it

unnecessary to cite other authority for an exposition

of the manner in which facts “tried by a jury” might

be reexamined “according to the rules of the common

law.” Furthermore at that time the conception of

trial by jury which had led to the adoption of the

Seventh Amendment, was not matter merely of re-

corded history but of living memory, in the minds of

the bar and of the Bench of this Court. The opinion

in Parsons v. Bedford is therefore entitled to conclu-

sive weight as determining the effect of this provision

of the Constitution.

The Court said:

“But the other clause of the amendment is

still more important, and we read it as a sub-

stantial and independent clause. ‘No fact tried

by a jury shall be otherwise re-examinable, in

any court of the United States, than according

to the rules of the common law.’ This is a pro-

hibition to the courts of the United States to

re-examine any facts tried by a jury in any

other manner. The only modes known to the

common law to re-examine such facts, are the

granting of a new trial by the court where the

issue was tried, or to which the record was prop-

erly returnable, or the award of a venire facias

de novo, by an appellate court, for some error

of law which intervened the proceedings. The

11

Judiciary Act of 1789, ¢. 20, Section 17, has

given to all the courts of the United States

‘power to grant new trials in cases where there

has been a trial by jury, for reasons for which

new trials have usually been granted in the

courts of law.’ And the appellate jurisdiction

has also been amply given by the same act (See-

tions 22, 24) to this court, to redress errors of

law; and for such errors to award a new trial,

in suits at law which have been tried by a jury.

* * *

“The terms of the present act may well be

satisfied by limiting its operation to modes of

practice and proceedings in the court below,

without changing the effect or conclusiveness of

the verdict of the jury upon the facts litigated

at the trial. Nor is there any inconvenience

from this construction; for the party has still

his remedy, by a bill of exceptions, to bring the

facts in review before the appellate court, so

far as those facts bear upon any question of

law arising at the trial; and if there be any

mistake of the facts, the court below is compe-

tent to redress it, by granting a new trial.

“Our opinion being that, if the evidence

were now before us, it wou!d not be competent

for this court to reverse the judement for any

error in the verdict of the jury at the trial; the

refusal to allow that evidence to be entered on

the record is not matter of error, for which the

judgment can be reversed,”

Per Story, J., in Parsons v. Bed ford, 3

Peters 433, 447-448, 449-450,

The principle has been many times reaffirmed. In

Railroad Company v. Fraloff, (1879) 100 U. S. 24, a

jury had returned a verdict for $10,000 for the value

of baggage allegedly necessary to the personal use of

a passenger which had been lost by a carrier. One

ie bs eee

mage st

12

of the errors assigned ca‘ied in question the reason-

ableness of a verdict that articles of such great value

were proper baggage. The Court said:

“No error of law appearing upon the rec-

ord, this court cannot reverse the judgment be-

cause, upon examination of the evidence, we

may be of the opinion that the jury should have

returned a verdict for a less amount. If the

jury acted upon a gross mistake of facts, or

were governed by some improper influence or

bias, the remedy therefore rested with the court

below, under its general power to set aside the

verdict. But that court finding that the verdict

was abundantly sustained by the evidence, and

that there was no ground to suppose that the

jury had not performed their duty impartially

and justly, refused to disturb the verdict, and

overruled a motion for new trial. Whether its

action, in that particular was erroneous or not,

our power is restricted by the Constitution to

the determination of the question of law aris-

ing upon the record. Our authority does not

extend to a re-examination of facts which have

been tried by the jury under instructions cor-

rectly defining the legal rights of parties.”

In Wilson v. Everett, (1890) 139 U. S. 616, it

clearly appeared from the evidence that the plaintiff

was either entitled to recover $5,000 or $15,000, or

nothing, but the jury returned a verdict for $10,000.

Among the errors assigned was the refusal of the trial

court to set aside this verdict. In passing upon this

question, the Court said:

“The principal ground of complaint by the

defendant seems to be that the jury had no basis

for finding a verdict for $10,000, but that their

_¢<es 2.

fee. Ga we Tee

13

verdict should have been for either: $5,000 or

$15,000. But this was a question to be reached

only through a motion for a new trial; and we

cannot, on this writ of error, review any error

committed in that respect by the jury, if there

were one. Nor can we take cognizance of the

complaint that the court overruled the motion

for a new trial, or that the verdict of the jury

was contrary to law and not warranted by the

testimony. The case was fairly submitted to

the jury, and the issues involved were passed

upon by them.”

In Chicago, Burlington and Quincy Railroad v.

Chicago, (1896) 166 U. S. 226, 246, this Court had

before it a jury verdict for one dollar, awarded as

compensation for the taking of real property by emi-

nent domain. This verdict was attacked as grossly

inadequate under the evidence. Among other things,

it appeared, as stated by Mr. Justice Brewer, dissent-

ing, that the owners of similar tracts adjoining had

been awarded five thousand dollars. Nevertheless,

the majority of the Court, speaking through Mr. Jus-

tice Harlan, emphatically disclaimed its power, as an

appellate court, to reexamine the facts tried by the

jury.

The Court said:

“Upon the reasoning in the case just re-

ferred to, it would seem to be clear that the

last clause of the Seventh Amendment forbids

the retrial by this court of the facts tried by the

jury in the present case,

“The persons empanelled in this case to as-

certain the just compensation due to the rail-

road company constituted a jury as ordained

14

by the constitution of Illinois in cases of the

condemnation of private property for public

use, and, being a jury within the meaning of

the Seventh Amendment of the Constitution of

the United States, the facts tried by it cannot

be retried ‘in any court of the United States

otherwise than according to the rules of the

common law.’ The only modes known to the

common law ‘to reexamine such facts, are the Ps

granting of a new trial by the court where the :

issue was tried, or to which the record was

properly returnable, or the award of a venire

facias de novo by an appellate court, for some

error of law which intervened in the proceed-

ings.’ Parsons v. Bedford, 3 Pet. 433, 447, 448;

Railroad Co. v. Fraloff, 100 U. 8. 24, 31.

“To this may be added that Congress has

provided that the final judgment of the high-

est court of a State in cases of which this court

may take cognizance, shall be reexamined upon

writ of error, a process of common law origin,

which removes nothing for reexamination but

questions of law arising upon the record. Egan

v. Hart, 165 U. S. 188. Even if we were of

opinion in view of the evidence that the jury

erred in finding that no property right, of sub-

stantial value in money. had been taken from

the railroad company, by reason of the open-

ing of a street across its right of way, we can-

not, on that ground, reexamine the final judg-

ment of the state court. We are permitted only

to inquire whether the trial court prescribed

any rule of law for the guidance of the jury

that was in absolute disregard of the company’s

right to just compensation.”

166 U. S. 244, 245-246.

EERE SONOS 2

It is submitted therefore, that in assuming in the

present case to examine the evidence and to determine

Seer dS bene

15

therefrom that “on any hypothesis appellants were

entitled to recover over $18,000,” and to reverse the

judgment because “the verdict should have been set

aside and a new trial ordered on appellants’ motion,”

the Circuit Court of Appeals of the Seventh Circuit

usurped a power clearly denied it by the Seventh

Amendment.

ochre

iA Shs eats ne Ses

16

Two.

The decision in question also conflicts with the

practice settled by many decisions of this Court apply-

ing this principle, to the effect that a trial court’s ac-

tion in overruling a motion for new trial is not review-

able for error of fact in an appellate court of the

United States.

Only a few of the many decisions of this Court so

deciding are cited below. Further comment is un-

necessary.

Marine Ins. Co. v. Young, (1809) 5 Cranch

187;

Barr v. Gratz’s Heirs, (1819) 4 Wheaton

213;

Zacharie v. Franklin, (1838) 12 Peters 151,

163;

Browne v. Clark, (1845) 4 How. 4, 15;

Doswell v. De La Lanza, (1857) 20 How.

29, 32;

Warner v. Norton, (1857) 20 How. 448,

461;

Pomeroy’s Lessee v. Bank of Indiana,

(1863) 1 Wall. 592, 593-594;

Mills v. Smith, (1868) 8 Wall. 27, 32;

Holder v. United States, (1893) 150 U. S.

91, 92.

17

THREE.

The decision also conflicts with decisions of the Cir-

cuit Court of Appeals of the Second, Third, Eighth and

Ninth Circuits, denying the power of an appellate court

to reexamine facts tried by a jury.

Following are some, not all, of the cases in which

Circuit Courts of Appeals of other circuits have re-

fused to reexamine facts tried by juries, or to con-

sider alleged errors of fact arising upon rulings upon

motion for new trial:

Miller v. Maryland Casualty Co., (2nd C. C.

A., 1930), 40 Fed. (2d) 463;

Keith v. Abrams, (3rd C. C. A., 1930), 43

Fed. (2d) 557;

J. W. Bishop Co. v. Shelhorse, (4th C. C. A.,

1905) 141 Fed. 643;

Chicago, M. & St. P. Ry. Co. v. Heil, (8th

C. C. A., 1907), 154 Fed. 626, 629;

American Trading Co. v. North Alaska

Salmon Co., (9th C. C. A., 1918), 248

Fed. 665.

Cases apparently contrary, some of which are

cited in support of the decision in the instant case,

are analyzed by Judge Learned Hand in the case of

Miller v. Maryland Casualty Company, supra. Speak-

ing of instances in which appellate courts appear to

have reversed for error of fact, he says:

“However, so far as we have found, all the

actual decisions except one, when this has been

done, are either where the jury gave nominal

ed

z

NMR pe ea se |

18

damages, that is, where they did not attempt

to appraise the plaintiff’s loss at all; where

their verdict was less than the amount of the

loss which the defendant did not dispute; or

where damages were not involved. In the first

class is Pugh v. Bluff City Excursion Co., 177

F. 399 (C. C. A. 6). In the second are Glen-

wood Irrigation Co. v. Vallery, 248 F. 483 (C.

C. A. 8); United Press Association v. National

Newspapers Association, 254 F. 284 (C. C.

A. 8); and Stetson v. Stindt, 279 F. 209 (C. C.

A.3). Inthe third are James v. Evans, 149 F.

136 (C. C. A. 3), and Frye v. Lyon, 299 F, 926

(App. D. C.). All these are within the limits

suggested in Southern Ry Co. v. Bennett, and

the exception, Cobb v. Lepisto, (C. C. A.) 6 F.

(2d) 128, (C. C. A. 9), so far as we can find

stands alone.”

It is believed that none of the cases discussed by

Judge Hand, except Cobb v. Lepisto, (9th C. C. A.,

1925), 6 Fed. (2d) 128, supports the action taken in

the present case.

The supposed power to reexamine a verdict for

nominal damages, for which is cited Pugh v. Bluff City

Excursion Co., (6th C. C. A., 1910), 177 Fed. 399, is

negatived by the decision of this Court in Chicago, Bur-

lington and Quincy Railroad v. Chicago, (1896), 166

U. S. 226, 246, discussed above.

Moreover, Pugh v. Bluff City Excursion Co. is not

in fact such a case, since the Circuit Court of Appeals

really reversed on account of the failure of the trial

judge to give a more positive instruction against an

award of nominal damage when the jurors inquired

whether they might return such a verdict.

19

It is submitted further that the present case is

not a true case of nominal damages; since if proper

to speculate upon the deliberations of the jury, it is

proper to assume that the one dollar represents the

result of subtracting a substantial award on the coun-

terclaim from a substantial award on the complaint.

The reason given in support of decisions of the

second class cited by Judge Hand is illustrated by

Glenwood Irrigation Co. v. Vallery, (8th C. C. A.,

1918), 284 Fed. 484, where the tria] judge had re-

fused to set aside a verdict less than the amount of

undisputed damages for which he had positively di-

rected a verdict. The Court said:

“No issue was submitted to the jury as to

the amount of plaintiff’s recovery. They were

confined by the charge to determining defend-

ant’s liability for the fire. It is manifest, there-

fore, that the amount of the damages was not

‘a fact tried by the jury,’ within the meaning

of the Seventh Amendment to the Federal Con-

stitution.”

Whether or not this reasoning be sound, it does

not justify the reversal in the instant case, where the

amount of recovery was sharply controverted and was

submitted to the jury.

The case of Stetson v. Stindt, (3rd C. C. A., 1922)

279 F. 209, placed by Judge Hand in the same cate-

gory and cited by the Court in the instant case, is

chiefly noteworthy for the fact that of the sixteen

cases cited by the Circuit Court of Appeals for the

Third Cireuit in support of its ruling, all but one were

SERA ae ARIES ANAC ara een Sok SR

NEV EGE 2 SAS SP BEG Em a

20

from state courts not governed by the Seventh Amend-

ment. The one Federal case was a decision of Mr.

Justice Story at nisi prius, where he exercised his

power as a trial judge, “according to the rules of com-

mon law,” to set aside a verdict as against the evi-

dence. It affords no support for such action by an

Appellate Court.

The case of James v. Evans, (3rd C. C. A., 1906)

149 Fed. 136, should not really appear here at all, as

the Appellate Court in that case reversed because the

trial court had set aside a verdict. The Court did

not reexamine the facts tried by the jury but the

facts tried by the court, and the reversal directed that

judgment be entered on the verdict.

One further case, cited by the Circuit Court of

Appeals for the Seventh Circuit in support of its ac-

tion in the present case, deserves mention. Smith v.

United States, (4th C. C. A., 1922) 281 Fed. 696,

was a criminal case. The Fifth Amendment which,

rather than the Seventh, is applicable to criminal jury

trials, contains no such limitation upon the power

of appellate courts as the Seventh Amendment. Con-

sequently no constitutional limitation prohibited the

action of that court in setting aside a verdict of con-

viction as against the evidence.

It is believed that the confusion as to the power

of an appellate court to “reexamine facts tried by a

jury” evidenced by the decisions above cited, is alone

sufficient to warrant the issuance of a writ of cer-

tiorari in this case. While decisions of this Court

seem clearly to have denied the power which was as-

21

sumed by the Circuit Court of Appeals of ‘the Sev-

enth Circuit in rendering the decision now in ques-

tion, the fact that that court conceived its action war-

ranted by decisions of other Circuit Courts of Appeals

(including one rendered in a criminal case) indicates

that the true rule is frequently misapprehended and

that Circuit Courts of Appeals not infrequently fall

into the same error as did counsel in Mills v. Smith,

8 Wall. 27, 32, where Mr. Justice Grier said:

“The counsel, in their arguments in this

case, seem to have forgotten that this court have

no right to order a new trial because they may

believe that the jury may have erred in their

verdict on the facts. If the court below have

given proper instructions on the questions of

law, and submitted the facts to the jury, there

is no further remedy in this court for any sup-

posed mistake of the jury.”

Involving, as it does, the application of what Mr.

Justice Story denominates the “more important” part

of the fundamental guaranty of jury trial found in

the Seventh Amendment, this petition presents a sub-

ject matter which should be placed beyond further

question by a decision of this Court.

Respectfully submitted,

HENRY H. HORNBROOK,

Attorney for Petitioner.

CHARLES REMSTER,

ALBERT P, SMITH,

PAUL Y. Davis,

Kurt F, PANTZER,

ERNEST R, BALTZELL,

Of Counsel.