Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.
Plaintiff-appellant, Robert M. Myrtle, appeals in this diversity action from a judgment which became final when the district court vacated its order allowing plaintiff's motion for a new trial and denied such motion. Plaintiff brought suit against Checker Taxi Company, Inc., Milda Buick, Inc. and Dan Kuraitis to recover substantial damages for personal injuries. Plaintiff was injured while riding in a Checker taxicab which was struck by an automobile operated by Kuraitis. Kuraitis allegedly was acting within the scope of his employment by Milda Buick.
The jury found Checker Taxi Company not guilty; impliedly found that an agency relationship existed between Kuraitis and Milda Buick; found the latter two parties guilty of negligence; and assessed damages. The court entered judgment for plaintiff against Kuraitis and Milda Buick on these verdicts. On the next day the court vacated the judgment and submitted a corrected form of verdict which the jury signed and returned in open court. Judgment was then entered for plaintiff against Kuraitis and Milda Buick on this amended verdict.
Plaintiff moved for a new trial alleging several errors, including the procedure followed by the trial court in correcting the first verdict and the admission into evidence of certain statements bearing on plaintiff's prior injuries. The court granted the motion for a new trial on the latter ground, asserting that it had allowed defendant's counsel "to go too far back" in cross-examination of plaintiff as to his prior injuries. Subsequently, upon further argument, the court vacated this latter order and denied plaintiff's motion for a new trial.
Plaintiff here argues that his constitutional right to trial by jury has been abrogated by the action of the court subsequent to the entry of the first judgment and that he was denied a fair trial because of misconduct of counsel, the admission of improper evidence and the submission of improper instructions by the court.
The following events provide the factual background for plaintiff's contention that the court erred in allowing the jury's first verdict to be changed. At the conclusion of the trial, the court instructed the jury and tendered various forms of verdicts. Earlier, the parties had entered into the following stipulation:
"By agreement of the parties by their counsel in open Court it is ordered that if the jury in this case arrive at a verdict during the absence of the Judge they shall sign and seal their verdict, deliver it to one of the marshals in charge of the jury and separate; that the jury need not reassemble; that the verdict may be read in the absence of the jury; that the polling of the jury is waived; and that the Court may reassemble the jury for the purpose of correcting any clerical errors in the verdict."
The jury returned a verdict before adjournment of court with counsel not present. The verdict as read by the clerk to the court found Checker Taxi Company not guilty, found Milda Buick, Inc. guilty and assessed plaintiff's damages against it in the sum of $1, and found Kuraitis guilty and assessed plaintiff's damages against him in the sum of $1,000.
The court made no statement at this time with reference to the inconsistent form of the verdicts, but said:
"The Court: I am very grateful to you for your conscientious service. I can see you were very intelligent in your approach to this case.
"Thank you very much. The Marshall [sic] will instruct you as to your services. I think they may go for the day, may they not?
"The Marshal: Yes, your Honor.
"The Court: Thank you very much.The Marshal gives you permission to go until tomorrow morning.
"The Marshall: * * * tomorrow morning, upstairs, 10:00 o'clock.
"The Court: Mr. Clerk, enter judgments on the verdicts."
On the morning following, the court asked counsel for comments on the verdicts. Plaintiff's counsel made no objection. Then, as this rather lengthy excerpt from the record indicates, the following colloquy took place:
"Mr. Fuller [counsel for defendants]: I believe that the two verdicts we have here, one as opposed to Dan Kurietis [sic], and they assess the damages at $1,000, and they sign a verdict finding Milda Buick guilty, which purports to be the finding and the intention of the jury in that respect, but assess the damages of $1.00.
"The Court: They were both found guilty, necessarily they had to be.
"The Court: They both had to be found guilty. One couldn't be found guilty without the other, Kurietis ...