whole case to them or direct a verdict upon all the issues, as the circumstances require.2

8

A verdict has been directed after the summing up had begun and after the jury had announced their disagreement. A verdict should be directed in two classes of cases: where the evidence is undisputed,5 and where, although there may be a slight conflict it is so conclusive in favor of one party that the court would feel obliged to set aside a verdict against him.6 A mere preponderance of evidence is insufficient to support a direction although it might justify an order for a new trial. A verdict can only be directed when no recovery could be had by the party against whom the verdict is given, upon any view which could properly be taken of the facts. Upon such a motion every doubtful question of fact must be decided against the moving party. When the evidence shows conclusively that either party is entitled to a verdict the proper means of bringing that point to the attention of the court is a motion for a direction of a verdict.10 The inconsistency between the plaintiff's testimony and that given by him upon a former trial, was held to be in itself a sufficient reason for a direction of a verdict in favor of the defendant.11

A judgment was not reversed because the court refused to direct a verdict, when the only justification of such a direction

2 Elizabeth v. Fitzgerald, C. C. A., 114 Fed. 547.

3 La Crosse Plow Co. v. Pagenstecher, C. C. A., 253 Fed. 46.

4 Texas & P. Ry. Co. v. Sheftall, C. C. A., 133 Fed. 722; Elizabeth v. Fitzgerald, C. C. A., 114 Fed. 547.

5 Brothers v. Lidgerwood Mfg. Co., U. S. D. C., S. D. N. Y., Feb., 1914, N. Y. L. J., March 5, 1914. But see Grace v. Louisville & N. R. Co., C. C. A., 255 Fed. 843.

6 Missouri Pac. Ry. Co. v. Oleson, C. C. A., 213 Fed. 329; Chicago, St. P., M. & O. Ry. Co. v. Kroloff, 217 Fed. 525; Fricke v. International Harvester Co., C. C. A., 247 Fed. 869.

7 McIntyre v. Modern Woodman, C. C. A., 200 Fed. 1.

8 Washington Tr. R. Co. v. McDade, 135 U. S. 554, 571, 34 L. ed. 235, 241; Dunlap v. N. E. R. Co., 130 U. S. 649, 32 L. ed. 1058; Kane v. N. Central Ry. Co., 128 U. S. 91; Louisville & N. R. Co. v. Woodson, 134 U. S. 614, 621, 33 L. ed. 1032, 1034.

9 McIntyre v. Modern Woodmen, C. C. A., 200 Fed. 1.

10 Lewis v. Bloede, C. C. A., 202 Fed. 7; U. S. v. De Bolt, 50 Fed. 78.

11 Smith v. Boston Elevated Ry. Co., C. C. A., 184 Fed. 387.

was a failure to prove a fact, such as a failure to take out letters of administration, the existence of which had been assumed on the trial,12 and when it involved a ruling in direct conflict with the theory upon which both parties tried the case.18

Upon a motion to direct a verdict, the grounds of the motion should be stated.14

It has been said to be the better practice for the court to hear the argument and decide the motion in the absence of the jury; but the presence of the jury at comments upon the evidence, when made by the judge, is no ground for a new trial.15 Such a motion cannot be granted if made before all the evidence of both parties is closed.16 Where, after such a motion made at the close of the plaintiff's case has been denied, the defendant offers evidence on his own behalf, any error in denying the motion is cured.17

12 Choctaw, O. & G. R. Co. v. Jackson, C. C. A, 192 Fed. 792, 798.

13 Louisville & N. R. Co. v. Womack, C. C. A., 173 Fed. 752, 97 C. C. A., 566.

14 N. Y. & T. S. S. Co. v. Anderson, C. C. A., 50 Fed. 462; U. S. v. Bank of Metropolis, 15 Pac. 377, 10 L. ed. 774.

In the Fifth Circuit, Pensacola State Bank v. Merchants' & Farmers' Bank, 180 Fed. 504, and in the Seventh Circuit, Adam v. Shirk, C. C. A., 104 Fed. 54, it has been held to be no error to deny a motion for the direction of a verdict for the defendant where no statement of the point as to which there is contended to be a lack of evidence, was specified on the motion. See Victor American Fuel Co. v. Tomljanovich, C. C. A., 2nd Ct. 232 Fed. 662.

In the First, O'Halloran v. MeGuirk, C. C. A., 167 Fed. 493, 93 C. C. A. 129, and in the Sixth Circuit, Erie R. Co. v. Schultz, C. C. A., 173 Fed. 759, a different rule prevails. And the Eighth Circuit

McDowell v. U. S., C. C. A., 257 Fed. 298. See Atlantic Terra Cotta Co. v. Masons' Supply Co., C. C. A., 180 Fed. 332.

15 Illinois Cent. R. Co. v. Griffin, C. C. A., 80 Fed. 278.

16 Walker v. Windsor Nat. Bank, C. C. A., 56 Fed. 76.

17 Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 204, 36 L. ed. 405; Northern Pac. R. Co. v. Charles, C. C. A., 51 Fed. 562, 572; Southern Pac. Co. v. Hamilton, C. C. A., 54 Fed. 468; U. S. Fidelity & G. Co. v. Board of Com'rs, C. C. A., 145 Fed. 144; Fidelity & Casualty Co. of New York v. Thompson, C. C. A., 11 L.R.A. (N. S.) 1069, 154 Fed. 484; Leyer v. U. S., C. C. A., 183 Fed. 102; Bell v. Union Pac. R. Co., C. C. A., 194 Fed. 366; Harmon v. Flintham, C. C. A., 196 Fed. 635; Atlantic Coast Line R. Co. v. Connor, C. C. A., 194 Fed. 409.

Alaska Fishermen's Packing Co. v. Chin Quong, C. C. A., 202 Fed. 707; McIntyre v. Modern Woodmen of America, C. C. A., 200 Fed. 1;

When both parties move for a direction of a verdict, that is a submission of the facts to the court for decision and its finding is conclusive, unless there is no evidence as to a fact essential to support the judgment; 18 but not where a party moved in the alternative either for a verdict in his favor, or, in case that were denied, that he might have leave to go to the jury.19 After such a motion has been decided, it is too late for the unsuccessful party whose motion for a direction. has been denied to ask leave to go to the jury.20 The court is not bound to direct a verdict, although both sides move for a direction.21

The sufficiency of the evidence to justify the verdict will not be reviewed on writ of error unless a motion for the direction of a verdict was made by the plaintiff in error at the conclusion of the evidence 22 and an exception to its denial

Victor-American Fuel Co. v. Peccarich, C. C. A., 209 Fed. 568; Chicago, R. I. & Ry. Co. v. Stephens, C. C. A., 218 Fed. 535; Courtnay v. King, C. C. A., 220 Fed. 112; Fruth v. Benassi, C. C. A., 219 Fed. 549; Philadelphia Casualty Co. v. Fechheimer, C. C. A., 220 Fed. 401.

18 City of Defiance v. McGonigale, C. C. A., 150 Fed. 689; Anderson v. Messenger, C. C. A., 158 Fed. 250; Sena v. Am. Turquoise Co., 220 U. S. 497, 55 L. ed. 559; Interstate Life Assur. Co. v. Dalton, C. C. A., 165 Fed. 176; Melton v. Pensacola Bank & Tr. Co., C. C. A., 190 Fed. 126; City of Camden v. Armstrong Cork Co., C. C. A., 210 Fed. 818; Allegheny Valley Brick Co. v. C. W. Raymond Co., C. C. A., 219 Fed. 477; City of New York v. Third Nat. Bank, C. C. A., 221 Fed. 175; Buckbee v. P. Hohenadel, Jr., Co., C. C. A., 224 Fed. 14; City of Colorado v. Harrison, C. C. A., 228 Fed. 894; Williams v. Vreeland, C. C. A., 244 Fed. 346; Sampliner v. Motion Picture Patents Co., C. C. A., 255 Fed. 242.

19 Charlotte Nat. Bank v. South

ern Ry. Co., C. C. A., 179 Fed. 769, where a request at the same time for peremptory instructions and for special charges relating to conflicting evidence to be given in case the former were refused, were held not to be a waiver of the right to go to the jury upon a disputed question of fact; Pensacola State Bank v. Merchants' & Farmers' Bank, 180 Fed. 504, holding that in such a case, the moving party must spe-. cifically point out the facts upon which he relies as undisputed. Breakwater Co. v. Donovan, C. C. A., 218 Fed. 340; Southern Pac. Co. v. U. S., C. C. A., 222 Fed. 26.

20 Insurance Co. of North America v. Wisconsin Cent. Ry. Co., C. C. A., 134 Fed. 794; Brothers v. Lidgerwood Mfg. Co., U. S. D. C., S. D. N. Y., Feb., 1914, N. Y. L. J. March 5, 1914.

21 Ewert v. Fullerton, C. C. A., 225 Fed. 758.

22 German Ins. Co. of Freeport, Ill. v. Frederick, C. C. A., 58 Fed. 144; Joplin & P. Ry. Co. v. Payne, C. C. A., 194 Fed. 387; Atlantic Coast Line R. Co. v. Thompson, C.

duly taken.23 The courts of review incline towards leaving the direction of a verdict to the discretion of the trial judge and not to reverse because he has denied such a motion except in a very clear case.24 Where the parties stipulated upon a motion for a new trial that however the motion should be decided all questions presented by the evidence should be considered on the appeal, such stipulation did not supply the want of an exception at the trial before the verdict.25 Where a verdict was directed upon the disagreement of the jury while the counsel for both sides were absent under an agreement that the clerk might take the verdict, the successful party was estopped from objecting that the other had not excepted to such direction.26

§ 473i. Arguments of counsel. When a statement of a fact which cannot properly be admitted in evidence is made by counsel in the presence of the jury at any time during the trial or in the closing arguments to the jury a statement is made of a fact not in evidence: upon objection by the other side, it is the duty of the court to direct its withdrawal and immediately instruct the jury to disregard it. When the mischief done is likely to be incurable, the court should direct the withdrawal of a juror or otherwise discharge the jury and declare a mistrial. For a refusal to do this, the judgment may be reversed provided that the objection, exception and request are made and taken immediately after the of fensive language. Otherwise not. Where such remarks are

C. A., 211 Fed. 889; Victor American Fuel Co. v. Tomljanovich, C. C. A., 232 Fed. 662.

23 Maxwell v. Abrast Realty Co., C. C. A., 1218 Fed. 457; Wear v. Imperial Window Glass Co., C. C. A., 224 Fed. 60.

24 Patton v. Texas & Pac. Ry., 179 U. S., 658, 21 Sup. Ct., 275, 45 L. ed., 361; Norfolk & W. Ry. v. Hauser, 211 Fed. 567.

25 Maxwell v. Abrast Realty Co., C. C. A., 218 Fed. 457.

26 Union Pac. R. Co. v. U. S., 219 Fed. 427; Grace v. Louisville & N. R. Co., C. C. A., 255 Fed. 843.

§ 4731. 1 Quinette v. Pullman Co., 229 Fed. 333.

2 Ibid. Johnson v. C. C. A., 215 Fed. 679; Paquin v. C. C. A., 251 Fed. 519; Manuel v. U. S., C. C. A., 254 Fed. 272.

V.

3 Latham v. C. C. A., 226 Fed. 420; infra, § 530; McKibben Philadelphia & R. Ry. Co., C. C. A., 251 Fed. 577.

4 Quinette v. Pullman Co., 229 Fed. 333. Ibid. Johnson v. C. C. A., 215 Fed. 679; Manuel v. U. S., C. C. A., 254 Fed. 272; Paquin v. C. C. A., 251 Fed. 519.

5 Toledo, St. L. & W. R. Co. y. Howe, C. C. A., 191 Fed. 776; Car

withdrawn and the jury instructed to ignore the same, a judg ment will not ordinarily be reversed because the court overruled an objection thereto when first made.

A statement by counsel as to the former verdicts in the case is considered to be incurable. In the Districts of Pennsylvania in the Third Circuit counsel are obliged to follow the State practice and are not permitted to state in the presence of the jury the amount demanded in the complaint.8

In some districts it is the custom to have arguments upon questions of law arising upon motions to dismiss or for the direction of verdicts or upon important questions of evidence, or otherwise, made in the absence of the jury. In other districts this is not usual, although often done. There is no error in permitting the argument to take place in the presence of the jury,10 nor in permitting counsel in the course of such an argument to read to the court in the presence of the jury the opinions of other courts in similar cases.1

lisle v. U. S., C. C. A., 194 Fed. 827; Odell Mfg. Co. v. Tibbetts, C. C. A., 212 Fed. 652; Akalitis v. Philadelphia & Reading Coal & Iron Co., C. C. A., 239 Fed. 299.

6 St. Louis & S. F. R. Co. v. Rose, C. C. A., 159 Fed. 129.

7 McKibben v. Philadelphia & R. Ry. Co., C. C. A., 625 Fed. 577.

8 Vaughan v. Magee, C. C. A., 218 Fed. 630.

9 Konda v. U. S., C. C. A., 166 Fed. 91, 22 L.R.A. (N. S.) 304, infra, § 527.

10 Hastings v. Northern Pac. R. Co., 53 Fed. 224, 225, 226, per Hanford: "Counsel for the defendant objected to the reading of said decision in the hearing of the jury, and asserted that the purpose of the attorney for the plaintiff in reading it was to produce an effect upon the minds of the jurors, rather than to enlighten the court. The objection was overruled, and an exception was taken and allowed. The ruling of the court upon said objection constitutes the alleged error assigned as

11

one of the grounds for the present motion.

"I do not commend the reading of decisions upon the trial of a negligence case, but in this instance the court merely permitted the attorney in his argument to pursue the usual course. All that was read and said was pertinent to the questions at issue, and it would have been tyrannical for the court to have assumed to control counsel in the use of whether original or borrowed expressions or phrases or in the selection of authorities, to establish the propositions of law which he relied upon. I find no reason for admitting that an error was committed in the failure of the court to mold the style of the arguments."

For the right of the plaintiff to read before the jury parts of a publication which are not libelous. See Mann v. Dempster, C. C. A., 181 Fed. 76.

11 Hastings v. Northern Pac. R. Co., 53 Fed. 224.