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NEELY V. MARTIN K. EBY CONSTRUCTION CO., INC., 386 U. S. 317 (1967)
U.S. Supreme Court
Neely v. Martin K. Eby Construction Co., Inc., 386 U.S. 317 (1967)
Neely v. Martin K. Eby Construction Co., Inc.
Argued January 16-17, 1967
Decided March 20, 1967
386 U.S. 317
At the close of petitioner's evidence and again at the close of all evidence in this diversity action for damages for wrongful death of petitioner's father, respondent moved for a directed verdict. The trial judge denied the motions and submitted the case to the jury, which returned a verdict for petitioner. Respondent then moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, under Federal Rule of Civil Procedure 50(b). The trial court denied the motions and entered judgment for petitioner on the verdict. Respondent appealed, claiming that its motion for judgment n.o.v. should have been granted, while petitioner urged that the verdict be upheld. The Court of Appeals held that the evidence was insufficient to establish either respondent's negligence or proximate cause, and reversed the judgment of the District Court "with instructions to dismiss the action." Petitioner did not file a petition for rehearing in the Court of Appeals, but sought a writ of certiorari presenting the question whether the Court of Appeals could direct dismissal of the action. The order granting certiorari directed the parties to consider the question whether Rule 50(d) and certain of this Court's decisions permit such disposition by the Court of Appeals despite Rule 50(c)(2), which gives a party whose jury verdict is set aside by a trial court 10 days to invoke the trial court's discretion to order a new trial.
1. Appellate courts are not barred by the Seventh Amendment's right of jury trial from granting a judgment n.o.v.. and the statutory grant of appellate jurisdiction to the courts of appeals is broad enough to include the power to direct entry of a judgment n.o.v. on appeal. P. 386 U. S. 322.
2.Rule 50(d) is applicable where, as here, the trial court denied a motion for judgment n.o.v.; the Rule expressly preserves to the party prevailing in the district court the right to urge that the court of appeals grant a new trial if the jury's verdict be set aside on appeal. P. 386 U. S. 323.
(a) Rule 50(d), which is permissive in the nature of its directions to the courts of appeals, contains nothing indicating that such courts may not direct entry of judgment n.o.v. in appropriate cases. P. 386 U. S. 324.
(b) When the trial court denied judgment n.o.v. and respondent appealed, jurisdiction over the case passed to the Court of Appeals and petitioner's right to seek a new trial in the trial court after her jury verdict was set aside became dependent on the disposition by the Court of Appeals under Rule 50(d). P. 386 U. S. 324.
3. While judgment for a defendant appellant should not be ordered where a plaintiff appellee urges grounds for a nonsuit or a new trial which should more appropriately be addressed to the trial court, such considerations do not justify an ironclad rule that the courts of appeals should never order dismissal or judgment for defendant when the plaintiff's verdict has been set aside on appeal. Pp. 386 U. S. 325-326.
4. Rule 50(d) provides a plaintiff appellee with adequate opportunity to present his grounds for a new trial in the event his verdict is set aside on appeal. In addition, he may bring his grounds for a new trial to the trial court's attention when the defendant first makes a motion for judgment n.o.v., or he may seek rehearing from the court of appeals after his judgment has been reversed. Pp. 386 U. S. 328-329.
5. Petitioner did not suggest that she had a valid ground for a new trial until her brief to this Court, and there is no cause for deviating from the policy of not considering issues not presented to the Court of Appeals and not properly presented for review here. P. 386 U. S. 330.
344 F.2d 482, affirmed.
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