CHAPMAN v. YELLOW POPLAR LUMBER CO., 89 F. 903

GOFF, Circuit Judge. For a statement of the facts and of the law applicable to this case reference is made to the opinion of this court tiled therein heretofore. 42 U. S. App. 21, 20 C. C. A. 503, and 74 Fed. 444. The judgment rendered in favor of the plaintiff below was reversed when this case was first before this court, and the court below was directed to grant a new trial, and to proceed in the manner indicated by the opinion then filed.

When the case came on to be again heard below, that court set aside the verdict, granted a new trial, refused permission to the plaintiff below to file an amended declaration, and overruled his motion for the payment of costs in the .former trial. -The case was then tried to a jury, and at the close of all the testimony the jury, by direction of the court, returned a verdict for the defendant.

The case comes now again before us on assignments of error relating .to the action of the court in refusing to allow an amended declaration to be filed, in refusing to require the defendant below to pay the costs of the former before proceeding with the new trial, in excluding evidence offered by the plaintiff, in admitting evidence offered by the defendant, and in directing a Arerdict for the defendant below. The court was clearly right in refusing to require the defendant to pay the costs of the former trial before granting a new trial.

This court had attached no such condition to its judgment, and its mandate required the verdict of the jury to be set aside, and a new trial had. The provision of the Code of Virginia (section 3545, Code 1887) relating to the payment of costs in certain cases where new trials are granted had no application to the circumstances surrounding this controversy at the time the court below so acted. The judgment below, in this respect, properly followed the mandate of this court, and is without error. In re Washington & G. R. Co., 140 U. S. 91, 11 Sup. Ct. 673; Gaines v. Rugg, 148 U. S. 228, 13 Sup.

Ct. 611; In re Sanford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291. The motion made by the plaintiff to amend the declaration was one to be determined by the court below from the facts, circumstances, and conditions existing at the time it was so made. It was within the discretion of the trial judge, and his action is not subject to review here, unless it was entirely unreasonable.

An examination of the pleadings as originally filed and subsequently amended, and of the proceedings • had relating thereto, both in this and in the court below, induces us to concur in the conclusion reached by the trial judge in denying the plaintiff’s application to amend his declaration, especially in the absence of explanation of the reason of the delay in presenting the same, there being no claim of surprise, mistake, or fraud.

We do not find it necessary to consider and dispose of the many separate exceptions and assignments of error relating to the admission of certain testimony and. the exclusion of eAddence tendered by the plaintiff below, for the reason that such rulings of the court could not, in any event, have controlled the action of the judge in directing a verdict for the defendant.

We have very carefully examined the very voluminous record, noting the, character of the testimony admitted over the exceptions as well as of that rejected, and, considering the same in connection with the verdict directed, we are forced to the conclusion that, in any event, it would have been the duty of the court to have made the direction it did. That being so, the questions of evidence involved in the exceptions mentioned, while interesting, are not material, in view of the fact that the case is not to be again tried.

The only issue before the jury was that raised by the defendant’s plea of the general issue to the plaintiffs declaration. This court having construed the contract offered in evidence by the plaintiff in the manner set forth In the opinion heretofore filed, it was, we think, in the light of all the testimony before; the jury, clearly the duty of the judge; to direct a verdict for the; defendant. A verdict in favor of the plaintiff would have been against both the law and the evidence, and would necessarily have bee;n set aside;.

Under such circumstances a court should not permit the jury to render a verdict, but should, in order to expedite the due administration of justice, direct such verdict as is plainly indicateel, and as will dispose of the controversy at the earliest moment proper, with the least costs to the parties. It was clear to the trial judge — a conclusion in which we fully concur - — that, as a mailer of law, no recovery could have been had by the plaintiff below upon any view’ which could properly have been taken of (lie facts the evidence tended to establish. Under such circumstances a verdict should be directed.

Pleasants v. Fant, 22 Wall. 116; Insurance Co. v. Doster, 106 U. S. 30, 1 Sup. Ct. 18; Assurance Co. v. Lucker, 42 U. S. App. 111, 23 C. C. A. 139, and 77 Fed. 243; Dunlap v. Railroad Co., 130 U. S. 649, 9 Sup. Ct. 647; Railroad Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905; Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85; Railway Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619; Franklin Brass Co. v. Phœnix Assur. Co., 25 U. S. App. 119, 13 C. C. A. 124, and 65 Fed. 773.

So far as this case is concerned, (.here is no such conflict in the evidence, nor is the credibility of any of the witnesses questioned in such a way as to require the case io be submitted to a jury under the rules established by the decisions relating to such matters. We find no error in the judgment complained of, and the same is affirmed.