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CRS Annotated Constitution

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Directed Verdicts.—In 1913 the Court in Slocum v. New York Life Ins. Co.,60 held that a federal appeals court lacked authority to order the entry of a judgment contrary to the verdict in a case in which the federal trial court should have directed a verdict for one party, but the jury had found for the other party contrary to the evidence; the only course open to either court was to order a new trial. While plainly in accordance with the common law as it stood in 1791, the five–to–four decision was subjected to a heavy fire of professional criticism based on convenience and urging recognition of capacity for growth in the common law.61 Slocum was then impaired, if not completely undermined, by subsequent holdings.1

In the first of these cases, the Court held that a trial court had the right to enter a judgment for the plaintiff on the verdict of the jury after having reserved decision on a motion by the defendant for dismissal on the ground of insufficient evidence.62 The Court distinguished Slocum while noting that its ruling qualified some of its assertions in Slocum.63 In the second case64 the Court sustained a United States district court in rejecting the defendant’s[p.1462]motion for dismissal and in peremptorily directing a verdict for the plaintiff. The Supreme Court held that there was ample evidence to support the verdict and that the trial court, in following Arkansas procedure in the diversity action, had acted consistently with the Federal Conformity Act.65 In the third case,66 which involved an action against the Government for benefits under a war risk insurance policy which had been allowed to lapse, the trial court directed a verdict for the Government on the ground of the insufficiency of the evidence, and was sustained in so doing by both the appeals court and the Supreme Court. Three Justices, speaking by Justice Black, dissented in an opinion in which it is asserted that “today’s decision marks a continuation of the gradual process of judicial erosion which in one– hundred–fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment.”67 That the Court should experience occasional difficulty in harmonizing the idea of preserving the historic common law covering the relations of judge and jury with the notion of a developing common law is not surprising.68

Jury Trial Under the Federal Employers’ Liability Act.—One aspect of the problem of delineating the respective provinces of judge and jury divided the Justices for a lengthy period but now appears quiescent—cases arising under the Federal Employers’ Liability Act. The argument was frequently couched by the majority in terms of protecting the function of the jury from usurpation by judges intent on subverting and limiting remedial legislation enacted by Congress,69 and by the minority in terms of the costs to[p.1463]the Supreme Court in time and effort spent in evaluating the quantum of evidence necessary to create a jury question.70

Although the considerations present in the FELA cases were not inherently different from those in any civil case where the direction of a verdict or a decision of an issue by the court may raise sub silentio the issue whether the Seventh Amendment right to a jury trial has been impaired by court usurpation of the jury function, cases under the FELA, which retained the common–law requirements of negligence as a prerequisite to recovery, involved peculiarly difficult decisions as to the adequacy of proof of negligence. “Special and important reasons for the grant of certiorari in these cases are certainly present,” the Court wrote in a leading case, “when lower federal and state courts persistently deprive litigants of their right to a jury determination.”71 The operating test was: “Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on ground of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Similar issues have arisen under such statutes as the Jones Act72 and the Safety Appliance Act.73

“Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities.”74 A persistent dissent in the line of cases[p.1464]expressed the fear that in FELA cases “anything that a jury says goes, with the consequences that all meaningful judicial supervision over jury verdicts in such cases has been put at an end. . . . If so, . . . the time has come when the Court should frankly say so. If not, then the Court should at least give expression to the standards by which the lower courts are to be guided in these cases.”75

Appeals From State Courts to the Supreme Court

The clause of the Amendment prohibiting the re–examination of any fact found by a jury is not restricted in its application to suits at common law tried before juries in courts of the United States. It applies equally to a case tried before a jury in a state court and brought to the Supreme Court on appeal.76 Note, however, that the Court has frequently indicated that in cases involving a claim of a denial of constitutional rights it is free to examine and review the evidence upon which lower court conclusions are based, a position that under some circumstances could conflict with the principle of jury autonomy.77


Footnotes

60 228 U.S. 364 (1913) .
61 F. James, Civil Procedure 332–33 & n.8 (1965).
1 But see Hetzel v. Prince William County, 523 U.S. 208 (1998) (when an appeals court affirms liability but orders level of damages to be reconsidered, the plaintiff has a Seventh Amendment right either to accept the reduced award or to have a new trial).
62 Baltimore & Carolina Line v. Redman, 295 U.S. 654 (1935) .
63 Id. at 661. The Court’s opinions in both Redman and Slocum were authored by Justice Van Devanter.
64 Lyon v. Mutual Benefit Ass’n, 305 U.S. 484 (1939) .
65 Ch. 255, § 5, 17 Stat. 197 (1872), now superseded by the Federal Rules of Civil Procedure.
66 Galloway v. United States, 319 U.S. 372, 389 (1943) , wherein the Court said “the practice has been approved explicitly in the promulgation of the Federal Rules of Civil Procedure,” citing Berry v. United States, 312 U.S. 450 (1941) . In the latter case the Court remarked that the new rule has given “district judges, under certain circumstances, . . . the right (but not the mandatory duty) to enter a judgment contrary to the jury’s verdict without granting a new trial. But that rule has not taken away from juries and given to judges any part of the exclusive power of juries to weigh evidence and determine contested issues of facts—a jury being the constitutional tribunal provided for trying facts in courts of law.” Id. at 452–53.
67 319 U.S. 372, 397. The case, being a claim against the United States, need not have been tried by a jury except for the allowance of Congress.
68 See, e.g., Neely v. Martin K. Eby Construction Co., Inc., 386 U.S. 317 (1967) , interpreting Rules 50(b), 50(c)(2) and 50(d) of the Federal Rules of Civil Procedure, as well as the Seventh Amendment.
69 E.g., Tiller v. Atlantic Coast Line R.R., 318 U.S. 54 (1943) , in which Justice Black’s opinion of the Court initiated the line of cases here considered; Bailey v. Central Vermont Ry., 319 U.S. 350 (1943) ; Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29 (1944) . See Rogers v. Missouri Pacific R.R., 352 U.S. 500, 507–510 (1957) . Trial by jury is “part and parcel of the remedy afforded railroad workers” under the FELA. Bailey v. Central Vermont Ry., supra, 354. “The difference between the majority and minority of the Court in our treatment of FELA cases concerns the degree of vigilance we should exercise in safeguarding the jury trial—guaranteed by the Seventh Amendment.” Harris v. Pennsylvania R.R., 361 U.S. 15, 17 (1959) (Justice Douglas concurring). “[T]his Court is vigilant to exercise its power of review . . . to correct instances of improper administration of the Act and to prevent its erosion by narrow and niggardly construction.” Rogers v. Missouri Pacific R.R., supra, at 509.
70 Ferguson v. Moore–McCormack Lines, 352 U.S. 521, 524 (1957) (Justice Frankfurter dissenting), contains a lengthy review and critique of the Court’s practice.
71 Rogers v. Missouri Pacific R.R., 352 U.S. 500, 510 (1957) .
72 Schulz v. Pennsylvania R.R., 350 U.S. 523 (1956) ; Ferguson v. Moore–McCormack Lines, 352 U.S. 521 (1957) ; Michalic v. Cleveland Tankers, 364 U.S. 325 (1960) . See also Senko v. La Crosse Dredging Corp., 352 U.S. 370 (1957) ; A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355 (1962) .
73 Ferguson v. Moore–McCormack Lines, 352 U.S. 521, 525 n.2 (1957) (Justice Frankfurter dissenting).
74 Id. at 506–07. The cases are collected id. at 510 n.26. The cases are tabulated and categorized in Wilkerson v. McCarthy, 336 U.S. 53, 68–73 (1949) (Justice Douglas concurring), and Harris v. Pennsylvania R.R., 361 U.S. 15, 16–25 (1959) . See also Harrison v. Missouri Pacific R.R., 372 U.S. 248 (1963) ; Basham v. Pennsylvania R.R., 372 U.S. 699 (1963) .
75 Harris v. Pennsylvania R.R., 361 U.S. 15, 27–28 (1959) (Justice Harlan dissenting). See also Ferguson v. Moore–McCormack Lines, 352 U.S. 521, 524 (1957) (Justice Frankfurter dissenting); Dick v. New York Life Ins. Co., 359 U.S. 437, 447 (1959) (Justice Frankfurter dissenting).
76 The Justices v. Murray, 76 U.S. (9 Wall.) 274, 278 (1870); Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 242–46 (1897) .
77 See Time, Inc. v. Pape, 401 U.S. 279, 284–92 (1971) , and cases cited therein.
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