Neely v. Martin K. Eby Construction Company, Inc.

PETITIONER: Neely
RESPONDENT: Martin K. Eby Construction Company, Inc.
LOCATION: Gila County Youth Detention Center

DOCKET NO.: 12
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 386 US 317 (1967)
ARGUED: Jan 16, 1967 / Jan 17, 1967
DECIDED: Mar 20, 1967

Facts of the case

Question

Media for Neely v. Martin K. Eby Construction Company, Inc.

Audio Transcription for Oral Argument - January 16, 1967 in Neely v. Martin K. Eby Construction Company, Inc.

Audio Transcription for Oral Argument - January 17, 1967 in Neely v. Martin K. Eby Construction Company, Inc.

Earl Warren:

Number 12, Sandra Lee Neely, etcetera petitioner versus Martin K. Eby Construction Company.

Mr. Kripke, you may continue your argument.

Kenneth N. Kripke:

Mr. Chief Justice, may it please the Court.

There's a vast distinction between review of a record by a trial judge and review on appeal of a code record by an appellate court and as I started to say in the brief time available yesterday, it would appear that that is what the Seventh Amendment is all about.

There is one line of cases running from Slocum versus the New York Life Insurance Company down to Galloway which was immediately postwar, I believe which examined into the effect of the Seventh Amendment on appellate court review and particularly on the power of the appellate court to reverse and dismiss as against the party who had won the verdict below.

In the Slocum case, the Court was construing Pennsylvania law and it was said in that case, I think very flatly, that the appellate court has power to review the denial of a judgment notwithstanding the verdict but that the Seventh Amendment precludes the direction of judgment by the appellate court rather than the ordering of a new trial.

The Supreme Court of the United States in that case eliminated, modified the judgment by eliminating the direction to enter judgment and substituted direction for a new trial.

Following that case very closely was a Federal Employers' Liability Act case, the Young case at volume 232 of the official reports and that case following Slocum and citing Slocum said that even though there is no evidence of negligence for the jury a new trial should be granted rather than the dismissal or entry of judgment.

Then came the Redman case at 295 of the reports.

Justice -- Mr. Justice Van Devanter wrote that opinion as he did in the earlier case of Slocum some 20 years before and in that case which construed New York law, Mr. Justice Van Devanter said that the Court of Appeals did have the power to reverse as against the verdict winner below and to enter judgment against him.

The Slocum case was distinguished in the Redman case on the ground of the insufficiency of -- on the ground that the insufficiency of evidence question was not reserve in Slocum by the verdict loser as it was in Redman.

Then followed the Kennedy case, Aetna Insurance Company versus Kennedy which followed Slocum rather than Redman and then we had of course the -- what I believe was a very important case of Galloway which was construing not the power of an appellate court but the power of the trial judge with reference to the entry of judgment notwithstanding the verdict.

And there, even though it was the power of a trial judge which was at stake three justices dissented in that case.

In that case, the dissent pointed out that in the English common law as reported in Parsons versus Bedford.

There was no right or no power rather in an appellate court to reverse and dismiss a verdict winner out of court that the most that could be done was to grant a new trial.

And that deserves some discussion because in the Redman case, the Court said there was that power and we discovered in reading the English common law cases that were cited in Redman that actually what was happening at the common law was this, that the nisi prius judges would go out on the circuit and try these cases with the juries would reserve difficult questions of law, would bring these questions back to the Court en banc at Westminster and obtain opinions from the group of judges, from the brother judges en banc.

This was similar I think to a procedure where a judge on a trial level would call back his brother judges into chambers and say, “help me out on this problem.”

There was always the contact of one judge, always the contact of one judge on this reviewing body who was in the courtroom, who heard the witnesses, who saw the gestures if there was a blackboard, he saw the writing on the blackboard and he had the personal primary contact with that case.

In fact, in two of those cases Lord Mansfield was a trial judge and then he also was the judge who wrote the opinion.

I'm talking about the common law cases.

Therefore, I feel that insofar as Redman indicate that there was a power to common law for a -- an appellate court to review a code record, I honestly think that Mr. Justice Van Devanter was wrong.

Earl Warren:

Well, what do you do with Rule (50) (d)?

Kenneth N. Kripke:

Yes, Your Honor.

The postwar cases deal then with Rule 50 and I will come down to that.

There were -- there are four cases under Rule 50.

There are no cases yet under Rule 50 (d) of course but there are four cases under Rule 50, the Cone case, the Globe Liquor case, the Weade versus Dichmann case and finally the Johnson case that I know of.

In each of which, this Court protected the verdict winner in one way or another by allowing a new trial in each of these.

Now, in none of these was any constitutional question reached except that in the Johnson case, the 344 of the U.S. reports, the Court did note that there was discussion of the Seventh Amendment in Redman and in Slocum and it mentioned that in passing but actually none of those cases dealt with the fundamental question.

I believe in reading -- it's my reading of the Cone, Globe Liquor, Weade, and Johnson all of these that what the Court was saying was that we are going to protect the rights of the verdict winner below.

Now, we get to Rule 50 (c) and 50 (d) as they were brought in to the law in 1963.