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Edwards v. Craig.

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT


October 25, 1943

EDWARDS ET AL.
v.
CRAIG.

Appeal from the District Court of the United States for the Southern District of Indiana, Indianapolis Division; Robert C. Baltzell, Judge.

Author: Minton

Before SPARKS, MAJOR, and MINTON, Circuit Judges.

MINTON, Circuit Judge.

The defendant-appellant seeks to reverse a judgment of the District Court entered upon the verdicts of a jury which awarded damages to the plaintiffs-appellees for injuries sustained in an automobile accident. The defendant-appellant claims there is no evidence in the record to sustain the allegation of the complaint that the defendant-appellant's agent was acting within the scope of his employment at the time of the accident.

The defendant-appellant made no motion for a directed verdict. In his motions for a new trial, some of the grounds alleged therefor were the insufficiency of the evidence. Since the defendant-appellant made no motion for a directed verdict, the insufficiency of the evidence cannot be raised here. Mutual Benefit Health & Acc. Ass'n v. Thomas, 8 Cir., 123 F.2d 353, 355; Western Produce Co. v. Folliard, 5 Cir., 93 F.2d 588, 589; Fricke v. General Accident Fire & Life Assur. Corp., Ltd., 8 Cir., 59 F.2d 563, 564.

Ordinarily, the overruling of a motion for a new trial is not assignable here as error. Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 128, 134, 12 S. Ct. 181, 35 L. Ed. 961; Pittsburgh, Cincinnati & St. Louis Railway Co. v. Heck, 102 U.S. 120, 26 L. Ed. 58; Ford Motor Co. v. Hotel Woodward, 2 Cir., 271 F. 625; Illinois Central R. Co. v. Horace Turner Co., 5 Cir., 9 F.2d 6; Terzo v. United States, 8 Cir., 9 F.2d 357; Courtnay v. King, 9 Cir., 220 F. 112; Bidwell v. Geo. B. Douglas Trading Co., 2 Cir., 183 F. 93; Condran v. Chicago, M. & St. P. Ry. Co., 8 Cir., 67 F. 522, 28 L.R.A. 749. The record presents no question for review, and the judgment of the District Court is affirmed.

19431025

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