The question presented by the petition for rehearing is this: Under Rule 50(b), 28 U.S.C.A. following section 723c, where the trial judge reserves decision on defendant's motion for a directed verdict or, in the alternative, for a new trial, until after a verdict of the jury for plaintiff is returned, and then sets aside the verdict, directs one in favor of defendant and erroneously enters judgment thereon, what should be the order when the Circuit Court of Appeals reverses the judgment? Should we merely order the verdict reinstated, or should we also direct the trial court to pass upon the alternative motion for a new trial?
In Duncan v. Montgomery Ward, 108 F.2d 848, the Circuit Court of Appeals for the Eighth Circuit held that when a trial court grants a motion for a directed verdict, it, in effect, denies the accompanying alternative motion for a new trial, so that the appellate court, upon reversal, should merely order re-instatement of the verdict. Certiorari was granted, April 8, 1940, 309 U.S. 650, 60 S. Ct. 809, 84 L. Ed. 1001.
In Pessagno v. Euclid Investment Co., App. D.C., 112 F.2d 577, the opposite view prevailed. The court expressed doubt as to correctness of the decision in the Duncan case, pointing out that a motion for a directed verdict raises only the question of the sufficiency of the evidence under the controlling legal principles, while a motion for a new trial may present many other question which the moving party has a right to have determined.
This same result was reached by the Circuit Court of Appeals for the Fifth Circuit in Pruitt v. Hardware Dealers Fire Ins. Co., 112 F.2d 140, 143. The court disapproved the Duncan case, saying: "An alternative motion for new trial was made in this case. If the judge had refused the judgment on directed verdict for defendant primarily asked, as we have held he should have done, he should then have considered the motion for new trial. * * * When we reverse the grant of judgment as on a directed verdict, the cause should be remitted tot he district judge that he may pass on the motion for new trial. Cases may occur in which the trial judge may think his charge, or rulings on evidence, or other occurrences in the trial require a new trial. Rule 50 ought not to be so construed as to cut off his supervisory power over the verdict because he erred in giving judgment notwithstanding the verdict."
It is well known that Rule 50(b) was promulgated largely with the idea in view of avoiding unnecessary new trials and it may well be that, if a motion for a directed verdict raises the same questions as those raised by a motion for new trial, fianl disposition of the motion for directed verdict likewise will work conclusive determination of the questions presented by the motion for new trial. In the present record, however, the alternative motion for a new trial attacks the correctness of the court's rulings upon rejection of proffered evidence during the course of the trial. The questions thus raised are not before us. Upon them defendant has not had her day in court. As appellee she could not present them in the present appeal. They can be determined only by the trial court in its disposition of the motion for new trial. Hence, in order adequately to protect defendant and to preserve her record upon the correctness of the rulings upon evidence, the trial court must act upon those questions presented by the motion for new trial. Consequently the judgment will be reversed with directions to reinstate the verdict, overrule the motion for judgment notwithstanding the verdict, dispose of all questions raised upon the motion for new trial not presented or decided in this court and take such further proceedings as are consistent with the trial court's action on the motion for new trial and with the opinion of this court.
The petition for rehearing is denied.