text:
    Joe O. WIGGS and Barbara Wiggs, his wife, etc., et al., Plaintiffs-Appellants-Cross Appellees, v. Jack R. COURSHON d/b/a The Twelve Caesars Motel, Defendant-Appellee-Cross Appellant.
    No. 73-2060
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 9, 1973.

      W. George Allen, Fort Lauderdale, Fla., for plaintiffs-appellants.
    James A. Smith, H. Dane Mottlau, Miami, Fla., for defendant-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 431 F.2d 409, Part I (5th Cir. 1970).

   RONEY, Circuit Judge:

A trial court order granting a new trial unless the plaintiff accepts a reduction in the amount of a jury verdict is' appealable only if the plaintiff agrees to the reduction under protest.

In this diversity tort action for insult, the District Court, 355 F.Supp. 206, thought the plaintiffs were too successful in achieving jury verdicts in the total amount of $25,000, part compensatory and part punitive. Consequently, the Court held a remittitur to be in order: “Defendant’s motion for a new trial is granted upon the condition that if plaintiffs stipulate to a reduction of the total amount of the verdicts, each verdict to be reduced proportionately to $2,500 within ten days, said motion will be denied.” The plaintiffs refused to so stipulate and filed a notice of appeal.

An order granting a new trial is generally not appealable because such an order is interlocutory and not a final judgment under 28 U.S.C.A. § 1291. North Texas Producers Ass’n v. Metzger Dairies, Inc., 348 F.2d 189 (5th Cir.), cert. denied, 382 U.S. 977, 86 S.Ct. 545, 15 L.Ed.2d 468 (1965); Citizens Nat’l Bank of Lubbock v. Speer, 220 F.2d 889 (5th Cir. 1955); see 3 Barron & Holtzoff, Federal Practice & Procedure § 1302.1; 6A Moore’s Federal Practice § 59.15 [1]. When such post-trial motion is made, any judgment theretofore entered ceases to be final until the motion is ruled upon. If a new trial is granted and results in a new final judgment, the appeal is to be taken from it. See 9 Moore, supra § 110.08 [3].

There is an exception to this proposition in cases where the trial court lacks jurisdiction, such as when the motion for new trial is not made within the time prescribed by Rule 59. In such instances, either an appeal from the order or an extraordinary writ may be appropriate. See United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129 (1914). Orders granting a new trial on the court’s own initiative after the expiration of the ten-day period have been held appealable under this exception. See Tsai v. Rosenthal, 297 F.2d 614 (8th Cir. 1961).

Plaintiffs argue here that the District Court granted the motion after the required period for bringing a motion and on a ground not stated in the motion, thus raising the jurisdictional exception. See Demeretz v. Daniels Motor Freight, Inc., 307 F.2d 469 (3rd Cir. 1962). But the defendant’s motion for new trial alleged that the punitive damages were not warranted by the evidence, an allegation tantamount to claiming an excessive verdict. Accordingly, the trial court’s order was within the concept of error raised by defendant’s motion.

Although an order granting a new trial is not appealable, it is reviewable. On appeal from a final judgment following the second trial, appellants may claim error in the grant of the second trial. If the appellate court agrees, it can reinstate the verdict reached at the first trial. See Standard Oil Co. v. Brown, 238 F.2d 54 (5th Cir. 1956); see also Finn v. American Fire & Cas. Co., 207 F.2d 113 (5th Cir. 1953). This procedure would be available to plaintiffs in the case at bar.

On the other hand, if the plaintiff accepts the remittitur under protest, the final judgment entered thereon would be appealable, and the order requiring remittitur could be reviewed in that appeal. See Gorsalitz v. Olin Mathieson Chem. Corp., 429 F.2d 1033 (5th Cir. 1970). By this procedure, the determination of the appeals court would be final. If the remittitur was in order, the plaintiff has agreed to it, the judgment would be final, and no new trial would be required. If the trial court erred in ordering the remittitur, the appellate court could set aside the judgment and order that a judgment be entered on the jury verdict. Again, no new trial would be necessary to conclude the litigation.

It should be noted that, even when an appeal is properly taken from a final judgment in such an instance, the scope of review of an order for new trial is quite narrow. In Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439 (1933), Justice Brandéis stated the prevailing rule:

The rule that this Court will not review the action of a federal trial court in granting or denying a motion for a new trial for error of fact has been settled by a long and unbroken line of decisions; and has been frequently applied where the ground of the motion was that the damages awarded by the jury were excessive or were inadequate. The rule precludes likewise a review of such action by a Circuit Court of Appeals .... More frequently the reason given for the denial of review is that the granting or refusing of a motion for a new trial is a matter within the discretion of the trial court.

287 U.S. at 481, 53 S.Ct. at 254.

Dismissing plaintiffs’ appeal on the ground that the grant of the new trial is not appealable, we need not consider defendant’s cross-appeal. To rule on the issues there raised would be nothing more than an interlocutory review before final judgment which is not appropriate in this case.

Appeal dismissed.


source: Caselaw Access Project

author: McWILLIAMS, Circuit Judge.

license: Public Domain

text:
    William L. BRINKLEY, Plaintiff-Appellant, v. FARMERS ELEVATOR MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellee. Helen L. BRINKLEY, Plaintiff-Appellant, v. FARMERS ELEVATOR MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellee.
    No. 73-1257.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 11, 1973.
    Decided Oct. 16, 1973.

      Frank C. McMaster, Wichita, Kan. (Stanford J. Smith and D. Lee McMaster, Wichita, Kan., on the brief), for plaintiffs-appellants.
    Richard T. Foster, McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, Kan. (William A. Hensley, Wichita, Kan., Turner, Chartered, Great Bend, Kan., on the brief), for defendant-appellee.
    Before PHILLIPS, SETH and McWILLIAMS, Circuit Judges.
   McWILLIAMS, Circuit Judge.

The issue here to be resolved is whether under the doctrine of respondeat superior a client is liable for the tortious conduct of his attorney which causes injury to a third party. The trial court held that there was no such liability, and this appeal follows.

William and Helen Brinkley, the plaintiffs in the present proceeding, sustained severe injuries when the vehicle in which they were riding collided with a vehicle owned and operated by Clarence N. Holeman. For the purposes of this proceeding, at least, it is conceded that the collision was solely the result of Holeman’s negligence, he apparently being in an intoxicated condition at the time. The accident occurred at approximately 7:45 P.M. in Pratt County, Kansas, on U.S. Highway 54.

Holeman was a practicing attorney with law offices in Wichita, Kansas. Holeman had been employed by Farmers Elevator Mutual Insurance Company, hereinafter referred to as Farmers, to represent one of its insureds in an action which had been brought against the insured in the County Court in Dodge City, Kansas. On the day of the accident, Holeman had represented Farmers’ insured in the County Court in Dodge City, Kansas, the trial of the case having been concluded at approximately 11:45 A.M. on October 11, 1967. This was the only matter which Holeman handled for Farmers on the day in question, and how and where he spent the balance of that particular day is not known, at least from the record before us. Apparently Holeman sometime during the afternoon did imbibe alcoholic beverages. In any event, as he was returning that evening from Dodge City to his home in Wichita he negligently caused his vehicle to strike the vehicle in which the Brinkleys were riding. As indicated, the Brinkleys were severely -injured-, and Holeman himself was killed.

It was in this general setting that the Brinkleys brought separate diversity actions against Farmers, alleging that Holeman was an agent, servant and employee of Farmers and that accordingly Farmers, under the doctrine of respondeat superior, was liable to the Brinkleys for their damages, which were said to total some $350,000, as actual damages, plus an additional $100,000, as punitive damages. By answer, Farmers specifically denied that Holeman was its agent, servant or employee, and generally denied any vicarious liability on its part.

The parties to the litigation filed with the trial court a very elaborate joint stipulation of fact, which fully explored, and set forth in detail, the nature of the relationship between Holeman and Farmers. Based, then, on the underlying facts contained in the joint stipulation, Farmers moved for summary judgment. After argument, this motion was granted and summary judgment was entered in favor of Farmers. The Brinkleys now appeal. We affirm. In order for this opinion to have any real meaning, we feel the stipulation of facts should be summarized in considerable detail. The nature of the relationship between Holeman and Farmers is of course all important.

As indicated, Holeman was an attorney at law licensed to practice in Kansas, and he maintained his own law office in Wichita. In connection therewith Holeman employed a legal secretary and he had recently employed a young attorney to assist in the operation of his law office. Holeman had maintained his own law office since about 1955, when he had left a firm of lawyers with whom he had previously been associated for several years. Holeman held himself out to the public as engaging in the general practice of law, and he was so considered by other members of the Bar in the Wichita area.

Farmers is an insurance company incorporated in Iowa and maintaining its principal offices in Des Moines, Iowa. It has an office in Hutchinson, Kansas, which is headed by a claims adjuster who is a full-time employee of Farmers.

In the conduct of its business, Farmers always attempted to negotiate and settle any claim against one of its insureds through its claims adjuster. If a claim could not be settled, and a lawsuit was instituted against one of its insureds, then Farmers at that point would employ counsel to defend the suit. Prior to 1955, Farmers had frequently employed the firm with which Holeman was then associated to represent its insureds. After Holeman terminated his association with the firm in 1955, Farmers began employing Holeman to represent its insureds against whom suit had been filed. This relationship grew to the end that in the ensuing years Hole-man was traveling all over Kansas in his representation of Farmers’ insureds and at one time the monies received by Hole-man from Farmers represented nearly 90% of his total income from his practice of the law.

In traveling around the state of Kansas, Holeman generally used his own vehicle, although he sometimes traveled with others or used commercial airlines. There was no contract between Farmers and Holeman, and the latter was hired on a case-by-case basis, with his fees for services being rendered on an hourly basis at a standard charge. He was also reimbursed by Farmers for out of pocket expenses, including travel expense at 8^ per mile.

The manner in which a particular case would be tried was in Holeman’s hands, with Farmers reserving only the right to decide whether a given case should be settled or tried. Accordingly, though an adjuster sometimes sat in on a trial, Holeman was in command of the trial itself, as well as the pretrial investigation and preparation.

It was in this general factual setting that Farmers employed Holeman to represent one of its insureds who was being sued in Dodge City, Kansas, which is located some 150 miles west of Wichita. Pursuant to his employment, Holeman drove in his own automobile to Dodge City where, during the morning of October 11, 1967, he tried a case for Farmers’ insured. This trial concluded before noon on the 11th. What Holeman did on the afternoon of the 11th is not known, although it is agreed that he performed no other services for Farmers during that time. En route back to Wichita, Holeman in the early evening of the 11th was involved in the accident out of which the present controversy arose.

In granting Farmers’ Motion for Summary Judgment, the trial court observed that under applicable Kansas law though a principal is liable for the tort of his agent, he is only liable if the tort be committed at a time when the agent is acting within the scope of his authority or employment. In this latter regard, the trial court concluded that when the tort occurred Holeman was not “engaged in or furthering the business” of Farmers. It was on this basis that summary judgment was entered for Farmers. We generally agree.

The exact nature of the relationship between an attorney and his client has through the years been the subject of considerable judicial discussion. In some older cases, the relationship has been characterized as that of a master and servant, with the client being the master and the attorney the servant. Richmond Association of Credit Men, Inc. v. Bar Ass’n of City of Richmond, 167 Va. 327, 189 S.E. 153 (1937); In re Clifton, 115 Fla. 168, 155 So. 324 (1934), and Chatham Lumber Co. v. Parsons Lumber Co., 172 N.C. 320, 90 S.E. 241 (1916). At the other end of the spectrum, courts have held that an attorney’s relationship to his client is more akin to that of an independent contractor. Pyle v. Ely & Walker Dry Goods Co., 179 F.2d 677 (5th Cir. 1950), and Buehman v. Smelker, 50 Ariz. 18, 68 P.2d 946 (1937). Still other courts have described the relationship as being that of principal and agent.

Under Kansas law, the relation between an attorney and his client has been held to be one of agency to which the general rules of agency apply. Pearcy v. First Nat. Bank in Wichita, 167 Kan. 696, 208 P.2d 217 (1949). See, also, Chisler v. Randall, 124 Kan. 278, 259 P. 687 (1927), where it was held that an attorney employed to conduct litigation is an agent for his client, but only as to matters respecting the litigation, and not for unauthorized defamatory communications made by the attorney outside the scope of his employment. So, as our starting point, we accept, as we must, the premise that under Kansas law there was a principal and agent relationship between Farmers and Hole-man wherein Holeman was Farmers’ agent in matters respecting the litigation involving Farmers’ insured then pending in the County Court in Dodge City, Kansas.

However, even though the relationship between Holeman and Farmers be one of agency, it does not necessarily follow that under the doctrine of respondeat superior Farmers is vicariously liable for Holeman’s tortious conduct toward the Brinkleys. Under Kansas law, the liability of a principal for the negligent acts of his agent is controlled by a determination as to whether, at the time in question, the agent was engaged in the furtherance of the principal’s business to such a degree that the principal had the “right to direct and control” the agent’s activities. See Hughes v. Jones, 206 Kan. 82, 476 P.2d 588 (1970), and Jacobson v. Parrill, 186 Kan. 467, 351 P.2d 194 (1960). See, also, Karnowski v. Skelly Oil Co., 174 F.2d 770 (10th Cir. 1949). If the principal had no such right to direct and control, then he is not vicariously liable to third parties for the consequences of the agent’s tortious conduct.

To the same general effect, see Hurla v. Capper Publications, 149 Kan. 369, 87 P.2d 552 (1939), where it was declared that it is not every principal who is liable for the tortious conduct of an agent, and that before a principal may be held liable for the tortious conduct of his agent “it is necessary to establish that particular species of agency known in the law as master and servant.” Hence, cases involving efforts to hold a master, or employer, liable to third parties for the tortious acts of his servant, or employee, become pertinent. Two such cases are United States v. Hainline, 315 F.2d 153 (10th Cir. 1963), cert. denied, 375 U.S. 895, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963), and Kyle v. Postal Telegraph-Cable Co., 118 Kan. 300, 235 P. 116 (1925).

Though the factual setting in Hainline is dissimilar to that of the instant case, the following language from that case is deemed pertinent:

“ * * * Under Kansas law the liability of an employer for the negligent acts of his employee is controlled by a determination as to whether, at the time of the act complained of, the employee was engaged in the furtherance of the employer’s business to such a degree that the employer had the right to direct and control the employee’s activities. Liability does not attach to the employer if there is only incidental furtherance of the employer’s business. * * * ”

In Kyle, an attempt was made to hold a telegraph company liable for the tort of its messenger boy who ran into a third party with his bicycle while returning home after the completion of his day’s work. In holding that vicarious liability did not attach to the master, the Kansas Supreme Court observed as follows:

“The question presented is whether, under the circumstances, the messenger boy, at the time of the accident, was acting within the scope of his employment. While he had upon his person reports and copies of messages which he was taking to his home that evening for delivery to the main office upon the succeeding Monday morning, no directions were given him as to the route he must follow to his home, when he should arrive there, whether he should go there, or where he should deposit the reports and documents given to him. Except that he was to deliver the reports the following Monday according to his custom, he was no longer under the company’s control, and that control did not again commence until he reported for duty the following Monday morning at 8 o’clock at the main office.
“In order to charge the employer with the negligent acts of his employee, the relation of master and servant must necessarily exist at the time of the injury. While Vandewalker had in his custody the reports for the company to be later delivered, actual work for the company had ceased for the day. He was free to go where he desired. He could use his own mode and route of travel. The defendant no longer controlled his movements. He might choose any route he desired to go home, or he might not go home at all. * * * ”

Under the authorities above cited and based on the stipulated facts, we agree with the trial court that at the time he drove his automobile into the Brinkley vehicle, Holeman was not engaged in the furtherance of Farmers’ business to such a degree that it could be said that Farmers, as the principal, had the right to direct and control Holeman’s physical conduct. Accordingly, Farmers is not vicariously liable for the consequences of Holeman’s misconduct. If Farmers had no right to direct or control Holeman’s courtroom activities in Dodge City, Kansas, on the morning of October 11, 1967, which right it is agreed Farmers did not have even though Holeman in one sense was its agent, even less did it have a right to direct or control his homeward jaunt during the evening of that same day. Even as the messenger boy in Kyle, Holeman was free to go where he desired and could use his own mode and route of travel and he might well have chosen not to go home at all. In sum, Farmers had no right to direct or control Holeman’s physical activities at the time he collided with the Brinkley vehicle.

Judgment affirmed.


author: PER CURIAM.

text:
    Shirley J. LINDSAY, Executrix of the Estate of John Douglas Lindsay, Deceased, Appellant, v. McDonnell douglas aircraft CORPORATION, a corporation, Appellee.
    No. 73-1072.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1973.
    Decided Oct. 4, 1973.
    Charles E. Gray of Gray, Friedman & Ritter, St. Louis, Mo., for appellant.
    R. E. Keaney, St. Louis, Mo., for appellee.
    Before GIBSON and BRIGHT, Circuit Judges, and SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

This appeal concerns a review of the District Court’s findings on remand of this same cause, reported as Lindsay v. McDonnell Douglas Aircraft Corporation, 460 F.2d 631 (8th Cir. 1972). The Honorable James H. Meredith, Chief Judge, Eastern District of Missouri, heard the original action and the case on remand.

Plaintiff originally brought this admiralty action under 46 U.S.C. § 761 (Death on the High Seas by Wrongful Act), seeking damages for the death of her husband arising out of the crash of a F4B Navy fighter plane manufactured by defendant. The District Court originally found for the defendant, and on appeal this court reversed and remanded for further findings.

On remand, the District Court properly reviewed the evidence in light of the theory of strict liability in tort, found that the “aircraft was not on fire prior to hitting the ocean,” and concluded that the plaintiff had not proved that the aircraft was defective. Lindsay v. McDonnell Douglas Aircraft Corporation, 352 F.Supp. 633, 633-634 (E.D.Mo. 1972).

We are again urged by appellant to review the factual findings under the clearly erroneous rule and also to hold that, as a matter of law, the evidence supports only one conclusion, namely that the plane was on fire as a result of a defect for which the appellee would be liable. Upon reviewing the evidence, we cannot say that there is no substantial support for the District Court’s findings, even though we might have some disagreement with them and may have found otherwise as the original triers of the fact. Sitting as a reviewing court, we are mindful of the Supreme Court’s admonition in Zenith Corp. v. Hazeltine, 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969):

“In applying the clearly érroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. The question for the appellate court under Rule 52(a) is not whether it would have made the findings the trial court did, but whether ‘on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed.’ United States v. United States Gypsum Co., 333 U.S. 364, 395 [68 S.Ct. 525, 542, 92 L.Ed. 746] (1948).” (other citations omitted).

An appellate court accepts the presumption that the District Court’s factual findings are correct, and does not reevaluate the evidence nor substitute its judgment for the District Court’s firsthand evaluation. Friedman v. Fordyce Concrete, Inc., supra at 387; Indemnity Ins. Co. of North America v. Pioneer Valley Savings Bank, 343 F.2d 634, 643-644 (8th Cir. 1965); Consolidated Sun Ray, Inc. v. Oppenstein, 335 F.2d 801, 804 (8th Cir. 1964), quoting Cleo Syrup Corporation v. Coca-Cola Company, 139 F.2d 416, 417-418 (8th Cir. 1943). Also, the plaintiff, as the complaining party, has the burden to clearly demonstrate error in the factual findings. Murphy v. Shelby, 353 F.2d 418, 421 (8th Cir. 1965); Montgomery Ward & Co. v. Steele, 352 F.2d 822, 826 (8th Cir. 1965).

Cognizant of the above standards of review, we conclude that the factual findings are not clearly erroneous and that no error was committed by the District Court in applying the proper legal principles to the factual issues presented.

Judgment affirmed.

      . That reported case is Lindsay v. McDonnell Douglas Aircraft Corporation, 331 F.Supp. 257 (E.D.Mo.1971).

      . Lindsay v. McDonnell Douglas Aircraft Corporation, 460 F.2d 631 (8th Cir. 1972).

      . Friedman v. Fordyce Concrete, Inc., 362 F.2d 386, 387 (8th Cir. 1966); Manning v. Jones, 349 F.2d 992, 995 (8th Cir. 1965).


author: FRIENDLY, Circuit Judge: LUMBARD, Circuit Judge

text:
    Maurice STANS and John N. Mitchell, Petitioners, v. Hon. Lee P. GAGLIARDI, United States District Judge, and United States of America, Respondents. UNITED STATES of America, Appellee, v. John N. MITCHELL and Maurice Stans, Defendants-Appellants.
    Nos. 326, 327, Dockets 73-2291, 73-2293.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 11, 1973.
    Decided Sept. 11, 1973.
    Walter J. Bonner, Edward C. O’Connell, John P. Diuguid, Paul R. Dean, Richard W. Boone, Washington, D. C. (Greenhill & Speyer, New York City, Carr, Bonner, O’Connell, Kaplan, Thompson & Diuguid, and Wilkinson, Cragun & Barker, Washington, D. C., of counsel), for petitioner-appellant Stans.
    Curtis, Mallet-Prevost, Colt & Mosle, New York City (Peter Fleming, Jr., and John E. Sprizzo, New York City, of counsel), for petitioner-appellant Mitchell.
    Paul J. Curran, U. S. Atty., S. D. N. Y. (John R. Wing, James W. Rayhill, John A. Lowe, Kenneth R. Feinberg, John D. Gordon, III, Asst. U. S. Attys., of counsel), for the United States.
    Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.
   FRIENDLY, Circuit Judge:

John N. Mitchell and Maurice H. Stans, defendants to an indictment in the District Court for the Southern District of New York, ask us to vacate, by way either of appeal or of mandamus, a ruling of Judge Gagliardi, which refused to postpone the beginning of the trial from September 11 to a later day. Although counsel had indicated willingness to proceed on October 4, they urged that a later date, say in early November after conclusion of the Senate Watergate hearings, would be preferable.

Defense counsel represents that although the Government turned over many documents on July 16, these were not comprehensible until an explanation given by the Government on July 27; that discovery by the Government was not completed until August 29 (or, indeed, later), only thirteen days before the beginning of trial; that more time is needed to analyze this data; that an amended bill of particulars was filed only yesterday; that much of the time of counsel has had to be devoted to the preparation and argument of motions; and that it has been impossible to interview many potential witnesses. Even more impressively, they urge that much of the attention of the defendants since the return of the indictment has had to be devoted to inquiries by the Senate Committee and the special prosecutor arising out of the Watergate incident, to testifying before the Senate Committee, and to matters relating to a multitude of civil suits and other proceedings, and that all this has made serious inroads into the time available to the defendants for consultation with counsel in preparing their defense to this indictment. Indeed, counsel tell us that if the case should go to trial this afternoon as scheduled, they will be obliged to answer “Not ready.” We are convinced this representation is made in complete good faith.

Had we been in the position of the trial judge, we would have granted at least the three-week extension to October 4 that was requested. The indictment was returned only on May 10, 1973, and a trial beginning October 4 would have been well within the six months period fixed by the district court’s speedy trial rules even for cases not presenting exceptional circumstances. To be sure, the six months are a maximum (except as otherwise provided in the rules) and an even speedier trial is desirable if this is consistent with proper preparation on both sides. Moreover, as we made clear in announcing the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases in May, 1971, the policy of speedy trial of criminal cases, as distinguished from the constitutional requirement, is a matter of public interest as well as of the interest of defendants. On the other hand, these considerations must be carefully weighed against a defendant’s claim of need for a short delay to permit proper preparation and the risk that overruling such a claim may undermine a conviction obtained after many weeks of trial.

It should scarcely be decisive against defendants’ contentions that, as Judge Gagliardi observed, this is his oldest criminal case. Although the judge is to be commended for being abreast of his criminal docket, this success has no bearing on the crucial issue whether defendants can be properly prepared for a trial on September 11. Also we cannot agree with the judge’s view that trial of this 46-page, 16-count indictment, one a conspiracy count, supplemented by a 60-page bill of particulars, “is a very simple case.” The only reason adduced for proceeding on September 11 rather than a somewhat later date which we find at all persuasive is the desire to select a jury in the interval before resumption of the Senate Committee hearings. However, this is somewhat counterbalanced by the fact that if the trial begins before completion of the Senate hearings, now scheduled for early November, the jury will be sequestered as the Government has requested.

In a prosecution of this sort which will receive nationwide attention, it is peculiarly important that justice not only should be done but should seem to be done. A postponement of trial for a few weeks would be a small price to pay for stilling complaints, even if they were unjustified, that these defendants had not been given a fair opportunity to prepare their case and for avoiding an issue which will almost certainly continue during the trial and will be presented on appeal if defendants should be convicted. While the high positions formerly occupied by the defendants entitle them, to no more consideration than is accorded the ordinary citizen, they deserve no less.

We have thought it proper to state these views so that Judge Gagliardi may again consider the matter as we hope he will. However, Judge Feinberg and I do not believe we have the power to enforce them. So far as defendants are concerned, our jurisdiction by way of appeal in criminal cases is limited to final judgments, 28 U.S.C. § 1291. Not even the most liberal interpretation of the principle imparting finality to certain “collateral” intermediate orders, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), would go so far as to include an order setting a trial date, no matter how serious the consequences for a defendant are alleged to be.

The question of our power to issue mandamus is a shade closer, but not close enough to assist the defendants. It is true that since La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), it is no longer possible to state without qualification that a court of appeals can issue mandamus only when, as had been said only seven months earlier in Parr v. United States, 351 U.S. 513, 520, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956), on which the Government relies, “a court has exceeded or refused to exercise its jurisdiction.” See Note, Supervisory and Advisory Mandamus under the All Writs Act, 86 Harv.L.Rev. 595, 602-07 (1973). But the later decision in Will v. United States, 389 U.S. 90, 98 n. 6, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), shows that the liberalization in supervisory mandamus wrought by La Buy is not so extensive as defendants would need in order to prevail. As we said in United States v. DiStefano, 464 F.2d 845, 850 (2 Cir. 1972):

Will v. United States, 389 U.S. 90, 95, 104, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), makes plain that mere error, even gross error in a particular ease, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support issuance of the writ.

Although Will was an attempt by the Government to secure mandamus in a criminal case and the decision to some extent rested on that fact, 389 U.S. at 96-98, 88 S.Ct. 269, its language forbids the use of mandamus by a court of appeals to alter, on the request of indicted defendants, a considered discretionary determination of the trial date simply because it believes a short postponement would be a much wiser course. Acceptance of defendants’ view would mean that the courts of appeals would be deluged with applications for the postponement of criminal trials, with consequent delay even though few petitions were to be granted. If, on further reflection, the judge should adhere to his determination, a course we hope he will not follow, defendants, if convicted, will be able to raise the issue on appeal, where although the standard of review is strict, see United States v. Ellenbogen, 365 F.2d 982, 985-986 (2 Cir. 1966), cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1967); cf. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), they will not be required to show, as they are under the circumstances of this case, a “usurpation of power,” De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945).

The appeals are dismissed and the petitions for mandamus are denied. In consequence the motions for a stay of the trial pending our decision have become moot.

LUMBARD, Circuit Judge

(dissenting) :

I dissent. I would grant the writ of mandamus and direct the trial judge to set a trial date not earlier than November 1,1973.

This court is not powerless, in the face of the circumstances presented to the district court, to require, that in a case of this importance, without precedent in the history of the country, adequate time be allowed for the defendants to prepare their defense to these numerous, complicated and somewhat novel charges in a 16 count, 46 page indictment.

Of even more importance than the prompt disposition of a criminal ease is the requirement that the trial be a fair one so that justice may be done. This principle is of such importance that it would seriously prejudice public confidence in the administration of justice were these defendants forced to commence trial at a time when they have not had sufficient time to consult with their counsel and when their counsel manifestly have not had enough time adequately to prepare their defense, for the reasons set out in Judge Friendly’s opinion. While the setting of September 11 as the trial date may have seemed reasonable on May 29, it became abundantly clear in the following weeks that the defendants and their counsel could not adequately prepare by September 11.

In my opinion, we should not be content to admonish the trial judge to do that which it is clear he should do; we should exercise our supervisory power over the administration of criminal justice to ensure proper action on the part of the trial judge. While it is true that there is no reported decision of a federal appellate court which supports this view, it is equally true that this case and all the circumstances surrounding its prosecution are unprecedented.

The supervisory power over the administration of criminal justice must be exercised when a situation crying out for its use is clearly presented. I would not construe the granting of mandamus in a case such as this as constituting any precedent for entertaining such a petition in other cases.


author: GOLDBERG, Circuit Judge:

text:
    Rudolph BROWN, Plaintiff-Appellee, v. AGGIE & MILLIE, INCORPORATED, Defendant-Appellant.
    No. 73-1975
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 16, 1973.

      Winston E. Rice, James H. Roussel, New Orleans, La., George E. Duncan, Beaumont, Tex., for defendant-appellant.
    Nathan A. Cormie, Lake Charles, La., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York. 5 Cir. 1970, 431 F.2d 409, Part I.

   GOLDBERG, Circuit Judge:

In this admiralty case defendant shipowner appeals from the judgment of the United States District Court for the Western District of Louisiana granting plaintiff seaman $12,500 in damages and $8 a day maintenance and cure with interest on both awards from the date of judicial demand. Defendant alleges five points of error in the opinion and judgment of the district court. We find four of these contentions to be entirely without merit and we remand on the fifth point only for the correction of an inadvertent omission in the judgment below.

Plaintiff, a 51 year old seaman of considerable experience, was employed by defendant in Louisiana as a purse boat engineer in the menhaden fishing trade. On September 30, 1969, plaintiff was injured in a fall following the collision of the mate’s purse boat, on which he was serving, with the purse boat of the captain. The district court held, in findings not challenged here, that the collision occurred while plaintiff was a working member of defendant’s crew and that plaintiff “was in no way negligent in causing the collision and fall.” The court awarded a lump sum in damages plus $8 a day for maintenance and cure from September 30, 1969 through October 29, 1970. Defendant contends that the district court erred (1) in assessing the quantum of plaintiff’s injury; (2) in finding that plaintiff’s headaches resulted from the collision; (3) in awarding prejudgment interest; (4) in extending the maintenance period for some nine months after plaintiff was found fit for duty; and (5) in awarding maintenance and cure for days that plaintiff spent in a public hospital.

Defendant’s arguments that the able trial judge incorrectly determined both the proper monetary evaluation of plaintiff’s injuries and the relation of his recurring headaches to the original fall can be quickly dispatched. As an appellate court we do not sit to retry disputes on their facts. Whether the litigation is an ordinary civil action governed by the provisions of Rule 52(a) or like the present case, a cause tried to the district court in admiralty, “the Court of Appeals may not set aside the judgment below unless it is clearly erroneous.” McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20. Under this standard of review “[t]he question is not simply whether the reviewing court would have found otherwise but whether the trial court could permissably find as it did.” Movible Offshore, Inc. v. M/V Wilken I. Falgout, 5 Cir. 1973, 471 F.2d 268.

The district court had before it relevant and competent evidence supporting its conclusions and judgment on both the physical and fiscal extent of plaintiff’s suffering. This Court is therefore precluded from substituting its own assessment of the disputed facts for the considered judgment of the trial judge who heard all of the testimony and observed the demeanor of the witnesses.

Likewise, in its third contention of error — that the district court incorrectly ordered the levy of pre judgment interest — defendant calls upon this appellate tribunal to invade the proper sphere of the trial judge. The undisputed rule in this Circuit holds that the decision on whether to award pre judgment interest in admiralty cases is well within the sound discretion of the trial court. Doucet v. Wheless Drilling Co., 5 Cir. 1972, 467 F.2d 336; Chagois v. Lykes Bros. Steamship Co., 5 Cir. 1970, 432 F.2d 388; Canova v. Travelers Insurance Company, 5 Cir. 1969, 406 F.2d 410. Consequently, any reversal here must be based on a finding that the action below went so strongly against the equities as to constitute an abuse of discretion. In the instant case we find that the district court has properly exercised its discretion. The delay in the adjudication of the case from the time of judicial demand did not result from the kind of unscrupulous or negligent stalling on plaintiff’s part that would make the assessment of interest manifestly unfair to defendant.

Defendant next argues that no maintenance payments are justified for any time after March 11, 1970, because plaintiff was pronounced physically “fit for duty” by a physician at the United States Public Health Hospital in Galveston, Texas on that date. This contention, however, is based on a fundamental misconception of federal maritime law. Plaintiff sued under the Jones Act, 46 U.S.C. § 688, seeking not only damages, but also maintenance and cure. Under these latter conjunctive remedies, a seaman who becomes sick or injured while in the ship’s service is entitled to be reimbursed for both his medical and usual living expenses during the time that he is undergoing treatment. Calmar S. S. Corp. v. Taylor, 1938, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993. The cut-off date for both maintenance and cure is not the point at which the patient recovers sufficiently to take up his old employment; but rather, the time of maximum possible cure. Farrell v. United States, 1949, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850; Price v. Mosler, 5 Cir., 1973, 483 F.2d 275; Myles v. Quinn Menhaden Fisheries Inc., 5 Cir., 1962, 302 F.2d 146; Reardon v. California Tanker Company, 2 Cir., 1958, 260 F.2d. 369.

Federal maritime law does not require an injured seaman to forfeit payments of either maintenance or cure if there remains a reasonable possibility that further treatment will aid in restoring him to his pre-accident condition. The fact that plaintiff’s physical condition had improved enough to permit a return to work did not prevent the district court from believing, on the basis of the competent evidence before it, that further recovery was possible provided plaintiff received adequate medical attention.

Because an award of maintenance and cure is intended to compensate the injured seaman for monies necessarily spent for ordinary support and medical expenses during the course of treatment, it is essential for such recovery that plaintiff actually incur these expenses. When the plaintiff refuses treatment, is cared for through independent largesse, or, as in the instant case, avails himself of a public facility, the law clearly requires that no maintenance and cure be given for the days voluntarily spent without care or under public or private charity. Johnson v. United States, 1948, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468; Field v. Waterman SS Corporation, 5 Cir., 1939, 104 F.2d 849. The able trial judge unquestionably appreciated this legal restriction, for his findings and conclusions explicitly require payments for “September 30, 1969 through October 29, 1970, save and except for those periods of time during which plaintiff was hospitalized” [emphasis added].

Defendant’s fifth objection however, is addressed not to the opinion of the court below, but rather to the final judgment. It appears that in preparing the decree the trial judge inadvertently omitted the provision of his original order excluding maintenance and cure for those days spent in government hospitals. We therefore remand on this point only in order that the able trial judge might bring his final order into conformity with the findings of fact and conclusions of law.

Affirmed in part, remanded in part.