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Dissenting Opinion
Black

United States Supreme Court

319 U.S. 372

Galloway  v.  United States

 Argued: March 9, 1943. --- Decided: May 24, 1943


Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice MURPHY concur, dissenting.

The Seventh Amendment to the Constitution provides:

'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.'

The Court here re-examines testimony offered in a common law suit, weighs conflicting evidence, and holds that the litigant may never take this case to a jury. The founders of our government thought that trial of fact by juries rather than by judges was an essential bulwark of civil liberty. [1] For this reason, among others, they adopted Article III, § 2 of the Constitution, and the Sixth and Seventh Amendments. Today's decision marks a continuation of the gradual process of judicial erosion which in one hundred fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment.

Alexander Hamilton in The Federalist emphasized his loyalty to the jury system in civil cases and declared that jury verdicts should be re-examined, if at all, only 'by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court.' He divided the citizens of his time between those who thought that jury trial was a 'valuable safeguard to liberty' and those who thought it was 'the very palladium of free government.' However, he felt it unnecessary to include in the Constitution a specific provision placing jury trial in civil cases in the same high position as jury trial in criminal cases. [2]

Hamilton's view, that constitutional protection of jury trial in civil cases was undesirable, did not prevail. On the contrary, in response to widespread demands from the various State Constitutional Conventions, the first Congress adopted the Bill of Rights containing the Sixth and Seventh Amendments, intended to save trial in both criminal and common law cases from legislative or judicial abridgment. [3] The first Congress expected the Seventh Amendment to meet the objections of men like Patrick Henry to the Constitution itself. Henry, speaking in the Virginia Constitutional Convention, had expressed the general conviction of the people of the Thirteen States when he said, 'Trial by jury is the best appendage of freedom. * * * We are told that we are to part with that trial by jury with which our ancestors secured their lives and property. * * * I hope we shall never be induced, by such arguments, to part with that excellent mode of trial. No appeal can now be made as to fact in common law suits. The unanimous verdict of impartial men cannot be reversed.' [4] The first Congress, therefore provided for trial of common law cases by a jury, even when such trials were in the Supreme Court itself. 1 Stat. 73, 81.

In 1789, juries occupied the principal place in the administration of justice. They were frequently in both criminal [5] and civil cases the arbiters not only of fact but of law. Less than three years after the ratification of the Seventh Amendment, this Court called a jury in a civil case brought under our original jurisdiction. There was no disagreement as to the facts of the case. Chief Justice Jay, charging the jury for a unanimous Court, three of whose members had sat in the Constitutional Convention, said: 'For as, on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court(s) are the best judges of law. But still, both objects are lawfully within your power of decision.' State of Georgia v. Brailsford, 3 Dall. 1, 4, 1 L.Ed. 483. Similar views were held by state courts in Connecticut, Massachusetts, Illinois, Louisiana and presumably elsewhere. [6]

The principal method by which judges prevented cases from going to the jury in the Seventeenth and Eighteenth Centuries was by the demurrer to the evidence, under which the defendant at the end of the trial admitted all facts shown by the plaintiff as well as all inferences which might be drawn from the facts, and asked for a ruling of the Court on the 'law of the case.' [7] See for example Wright v. Pindar, (1647) Alleyn 18 and Pawling v. United States, 4 Cranch 219, 2 L.Ed. 601. This practice fell into disuse in England in 1793, Gibson v. Hunter, 2 H.Bl. 187, and in the United States federal courts in 1826, Fowle v. Alexandria, 11 Wheat. 320, 6 L.Ed. 484. The power of federal judges to comment to the jury on the evidence gave them additional influence. McLanahan v. Universal Insurance Co., 1828, 1 Pet. 170, 7 L.Ed. 98. The right of involuntary non-suit of a plaintiff, which might have been used to expand judicial power at jury expense was at first denied federal courts. Doe ex dem. Elmore v. Grymes, 1 Pet. 469, 7 L.Ed. 224; DeWolf v. Rabaud, 1 Pet. 476, 7 L.Ed. 227; but cf. Coughran v. Bigelow, 1896, 164 U.S. 301, 17 S.Ct. 117, 41 L.Ed. 442.

As Hamilton had declared in The Federalist, the basic judicial control of the jury function was in the court's power to order a new trial. [8] In 1830, this Court said: 'The only modes known to the common law to re-examine such facts, are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable; or the award of a venire facias de novo, by an appellate court, for some error of law which intervened in the proceedings.' Parsons v. Bedford, supra, 3 Pet. at page 448, 7 L.Ed. 732. [9] That retrial by a new jury rather than factual reevaluation by a court is a constitutional right of genuine value was restated as recently as Slocum v. New York Life Insurance Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann.Cas.1914D, 1029. [10]

A long step toward the determination of fact by judges instead of by juries was the invention of the directed verdict. [11] In 1850, what seems to have been the first directed verdict case considered by this Court, Parks v. Ross, 11 How. 362, 374, 13 L.Ed. 730, was presented for decision. The Court held that the directed verdict serves the same purpose as the demurrer to the evidence, and that since there was 'no evidence whatever' [12] on the critical issue in the case, the directed verdict was approved. [13] The decision was an innovation, a departure from the traditional rule restated only fifteen years before in Greenleaf v. Birth, 1835, 9 Pet. 292, 299, 9 L.Ed. 132, in which this Court had said: 'Where there is no evidence tending to prove a particular fact, the court(s) are bound so to instruct the jury, when requested; but they cannot legally give any instruction which shall take from the jury the right of weighing the evidence and determining what effect it shall have.'

This new device contained potentialities for judicial control of the jury which had not existed in the demurrer to the evidence. In the first place, demurring to the evidence was risky business, for in so doing the party not only admitted the truth of all the testimony against him but also all reasonable inferences which might be drawn from it; and upon joinder in demurrer the case was withdrawn from the jury while the court proceeded to give final judgment either for or against the demurrant. Hopkins v. Nashville, C. & St. L. Ry., 96 Tenn. 409, 34 S.W. 1029, 32 L.R.A. 354; Suydam v. Williamson, 20 How. 427, 436, 15 L.Ed. 978; Bass v. Rublee, 76 Vt. 395, 400, 57 A. 965. Imposition of this risk was no mere technicality; for by making withdrawal of a case from the jury dangerous to the moving litigant's cause, the early law went far to assure that facts would never be examined except by a jury. Under the directed verdict practice the moving party takes no such chance, for if his motion is denied, instead of suffering a directed verdict against him, his case merely continues into the hands of the jury. The litigant not only takes no risk by a motion for a directed verdict, but in making such a motion gives himself two opportunities to avoid the jury's decision; for under the federal variant of judgment notwithstanding the verdict, the judge may reserve opinion on the motion for a directed verdict and then give judgment for the moving party after the jury was formally found against him. [14] In the second place, under the directed verdict practice the courts soon abandoned the 'admission of all facts and reasonable inferences' standard referred to, and created the so-called 'substantial evidence' rule which permitted directed verdicts even though there was far more evidence in the case than a plaintiff would have needed to withstand a demurrer.

The substantial evidence rule did not spring into existence immediately upon the adoption of the directed verdict device. For a few more years [15] federal judges held to the traditional rule that juries might pass finally on facts if there was 'any evidence' to support a party's contention. The rule that a case must go to the jury unless there was 'no evidence' was completely repudiated in Schuylkill and Dauphin Improvement Co. v. Munson, 1871, 14 Wall. 442, 447, 448, 20 L.Ed. 867, upon which the Court today relies in part. There the Court declared that 'some' evidence was not enough-there must be evidence sufficiently persuasive to the judge so that he thinks 'a jury can properly proceed.' The traditional rule was given an ugly name, 'the scintilla rule', to hasten its demise. For a time traces of the old formula remained, as in Randall v. B. & O. Railroad, 109 U.S. 478, 3 S.Ct. 322, 27 L.Ed. 1003, but the new spirit prevailed. See for example, Pleasants v. Fant, supra, and Commissioners of Marion County v. Clark, 94 U.S. 278, 4 Otto 278, 24 L.Ed. 59. The same transition from jury supremacy to jury subordination through judicial decisions took place in State courts. [16]

Later cases permitted the development of added judicial control. [17] New and totally unwarranted formulas, which should surely be eradicated from the law at the first opportunity, were added as recently as 1929 in Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720, which, by sheerest dictum, made new encroachments on the jury's constitutional functions. There it was announced that a judge might weigh the evidence to determine whether he, and not the jury, thought it was 'overwhelming' for either party, and then direct a verdict. Cf. Pence v. United States, 316 U.S. 332, 340, 62 S.Ct. 1080, 1084, 86 L.Ed. 1510; Gunning v. Cooley, 281 U.S. at page 94, 50 S.Ct. at page 233, 74 L.Ed. 720, also suggests quite unnecessarily for its decision, that 'When a plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to establish neither.' This dictum, which assumes that a judge can weigh conflicting evidence with mathematical precision and which wholly deprives the jury of the right to resolve that conflict, was applied in Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819. With it, and other tools, jury verdicts on disputed facts have been set aside or directed verdicts authorized so regularly as to make the practice commonplace while the motion for directed verdict itself has become routine. See for example Southern Railway Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; Atlantic Coast Line Railroad v. Temple, 285 U.S. 143, 52 S.Ct. 334, 76 L.Ed. 670; Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492; Pence v. United States, supra; and De Zon v. American President Lines, 318 U.S. 660, 63 S.Ct. 814, 87 L.Ed. --.

Even Gunning v. Cooley, 281 U.S. at page 94, 50 S.Ct. at page 233, 74 L.Ed. 720, acknowledged that 'issues that depend on the credibility of witnesses * * * are to be decided by the jury.' [18] Today the Court comes dangerously close to weighing the credibility of a witness and rejecting his testimony because the majority do not believe it.

The story thus briefly told depicts the constriction of a constitutional civil right and should not be continued. Speaking of an aspect of this problem, a contemporary writer saw the heart of the issue: 'Such a reversal of opinion (as that of a particular State court concerning the jury function), if it were isolated, might have little significance, but when many other courts throughout the country are found to be making the same shift and to be doing so despite the provisions of statutes and constitutions there is revealed one aspect of that basic conflict in the legal history of America-the conflict between the people's aspiration for democratic government, [19] and the judiciary's desire for the orderly supervision of public affairs by judges.' [20]

The language of the Seventh Amendment cannot easily be improved by formulas. [21] The statement of a district judge in Tarter v. United States, D.C., 17 F.Supp. 691, 692, 693, represents, in my opinion, the minimum meaning of the Seventh Amendment:

'The Seventh Amendment to the Constitution guarantees a jury trial in law cases, where there is substantial evidence to support the claim of the plaintiff in an action. If a single witness testifies to a fact sustaining the issue between the parties, or if reasoning minds might reach different conclusions from the testimony of a single witness, one of which would substantially support the issue of the contending party, the issue must be left to the jury. Trial by jury is a fundamental guaranty of the rights of the people, and judges should not search the evidence with meticulous care to deprive litigants of jury trials.'

The call for the true application of the Seventh Amendment is not to words, but to the spirit of honest desire to see that Constitutional right preserved. Either the judge or the jury must decide facts and to the extent that we take this responsibility, we lessen the jury function. Our duty to preserve this one of the Bill of Rights may be peculiarly difficult, for here it is our own power which we must restrain. We should not fail to meet the expectation of James Madison, who, in advocating the adoption of the Bill of Rights, said: 'Independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; * * * they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of right.' So few of these cases come to this Court that, as a matter of fact, the judges of the District Courts and the Circuit Courts of Appeal are the primary custodians of the Amendment. As for myself, I believe that a verdict should be directed, if at all, only when, without weighing the credibility of the witnesses, there is in the evidence no room whatever for honest difference of opinion over the factual issue in controversy. I shall continue to believe that in all other cases a judge should, in obedience to the command of the Seventh Amendment, not interfere with the jury's function. Since this is a matter of high constitutional importance, appellate courts should be alert to insure the preservation of this constitutional right even though each case necessarily turns on its peculiar circumstances.

The factual issue for determination here is whether the petitioner incurred a total and permanent disability not later than May 31, 1919. It is undisputed that the petitioner's health was sound in 1918, and it is evidently conceded that he was disabled at least since 1930. When in the intervening period, did the disability take place?

A doctor who testified diagnosed the petitioner's case as a schizophrenic form of dementia praecox. He declared it to be sound medical theory that while a normal man can retain his sanity in the face of severe mental or physical shock, some persons are born with an inherent instability so that they are mentally unable to stand sudden and severe strain. The medical testimony was that this petitioner belongs to the latter class and that the shock of actual conflict on the battle front brought on the incurable affliction from which he now suffers. The medical witness testified that the dominant symptoms of the condition are extreme introversion and preoccupation with personal interests, a persecution complex, and an emotional instability which may be manifested by extreme exhilaration alternating with unusual depression or irrational outbursts. Persons suffering from this disease are therefore unable to engage in continuous employment.

The petitioner relies on the testimony of wartime and post war companions and superiors to show that his present mental condition existed on the crucial date. There is substantial testimony from which reasonable men might conclude that the petitioner was insane from the date claimed.

Two witnesses testify as to the petitioner's mental irresponsibility while he was in France. The most striking incident in this testimony is the account of his complete breakdown while on guard duty as a result of which he falsely alarmed his military unit by screaming that the Germans were coming when they were not and was silenced only by being forceably bound and gagged. There was also other evidence that Galloway became nervous, irritable, quarrelsome and turbulent after he got to France. The Court disposes of this testimony, which obviously indicates some degree of mental unbalance, by saying no more than that it 'does not prove he was insane.' No reason is given, nor can I imagine any, why a jury should not be entitled to consider this evidence and draw its own conclusions.

The testimony of another witness, O'Neill, was offered to show that the witness had known the petitioner both before and after the war, and that after the war the witness found the petitioner a changed man; that the petitioner imagined that he was being persecuted; and that the petitioner suffered from fits of melancholia, depression and weeping. If O'Neill's testimony is to be believed, the petitioner suffered the typical symptoms of a schizophreniac for some years after his return to this country; therefore if O'Neill's testimony is believed, there can be no reasonable doubt about the right of a jury to pass on this case. The Court analyzes O'Neill's testimony for internal consistency, criticizes his failure to remember the details of his association with the petitioner fifteen years before his appearance in this case, and concludes that O'Neill's evidence shows no more than that 'petitioner was subject to alternating periods of gaiety and depression for some indefinite period.' This extreme emotional instability is an accepted symptom of the disease from which the petitioner suffers. If he exhibited the same symptoms in 1922, it is, at the minimum, probable that the condition has been continuous since an origin during the war. O'Neill's testimony coupled with the petitioner's present condition presents precisely the type of question which a jury should resolve.

The petitioner was in the Navy for six months in 1920, until he was discharged for bad conduct, and later was in the Army during 1921 and a part of 1922 until he deserted. The testimony of his Commanding Officer while he was in the Army, Col. Matthews, is that the petitioner had 'periods of gaiety and exhilaration' and was then 'depressed as if he had had a hangover'; that petitioner tried to create disturbances and dissatisfy the men; that he suffered from a belief that he was being treated unfairly; and that generally his actions 'were not those of a normal man'. The Colonel was not a doctor and might well not have recognized insanity had he seen it; as it was, he concluded that the petitioner was an alcoholic and a narcotic addict. However, the officer was unable, upon repeated investigations, to discover any actual use of narcotics. A jury fitting this information into the general pattern of the testimony might well have been driven to the conclusion that the petitioner was insane at the time the Colonel had him under observation.

All of this evidence, if believed, showed a man healthy and normal before he went to the war suffering for several years after he came back from a disease which had the symptoms attributed to schizophrenia and who was insane from 1930 until his trial. Under these circumstances, I think that the physician's testimony of total and permanent disability by reason of continuous insanity from 1918 to 1938 was reasonable. The fact that there was no direct testimony for a period of five years, while it might be the basis of fair argument to the jury by the government, does not, as the Court seems to believe, create a presumption against the petitioner so strong that his case must be excluded from the jury entirely. Even if during these five years the petitioner was spasmodically employed, we could not conclude that he was not totally and permanently disabled. Berry v. United States, 312 U.S. 450, 455, 61 S.Ct. 637, 639, 85 L.Ed. 945. It is not doubted that schizophrenia is permanent even though there may be a momentary appearance of recovery.

The court below concluded that the petitioner's admission into the military service between 1920 and 1923 showed conclusively that he was not totally and permanently disabled. Any inference which may be created by the petitioner's admission into the Army and the Navy is more than met by his record of court martial, dishonorable discharge, and desertion, as well as by the explicit testimony of his Commanding Officer, Colonel Matthews.

This case graphically illustrates the injustice resulting from permitting judges to direct verdicts instead of requiring them to await a jury decision and then, if necessary, allow a new trial. The chief reason given for approving a directed verdict against this petitioner is that no evidence except expert medical testimony was offered for a five to eight year period. Perhaps, now that the petitioner knows he has insufficient evidence to satisfy a judge even though he may have enough to satisfy a jury, he would be able to fill this time gap to meet any judge's demand. If a court would point out on a motion for new trial that the evidence as to this particular period was too weak, the petitioner would be given an opportunity to buttress the physician's evidence. If, as the Court believes, insufficient evidence has been offered to sustain a jury verdict for the petitioner, we should at least authorize a new trial. Cf. Garrison v. United States, 4 Cir., 62 F.2d 41, 42.

I believe that there is a reasonable difference of opinion as to whether the petitioner was totally and permanently disabled by reason of insanity on May 31, 1919, and that his case therefore should have been allowed to go to the jury. The testimony of fellow soldiers, friends, supervisors, and of a medical expert whose integrity and ability is not challenged cannot be rejected by any process available to me as a judge.

NotesEdit

^1  'I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.' 3 Writings of Thomas Jefferson (Washington ed.) 71.

The operation of the jury trial system in civil cases has been subject to careful analysis; Clark and Shulman, Jury Trial in Civil Cases, 43 Yale L.Jour. 867; Harris, Is the Jury Vanishing, 7 N.Y.U.L.Q. 657. Its utility has been sharply criticized; Pound, Jury-England and United States, 8 Encyclopedia of the Social Sciences 492; Mr. Justice Miller, The System of Trial by Jury, 21 American L.Rev. 859 (1887). On the other hand, this Court has on occasion warmly praised this mode of trial: 'The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts.' Jacob v. New York, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166.

^2  For Hamilton's views on the place of the jury in the Constitution, see The Federalist, Nos. 81 and 83.

^3  'One of the strongest objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases.' Parsons v. Bedford, Breedlove & Robeson, 3 Pet. 433, 446, 7 L.Ed. 732. Of the seven States which, in ratifying the Constitution, proposed amendments, six included proposals for the preservation of jury trial in civil cases. Documents Illustrative of the Formation of the Constitution, House Doc. No. 398, 69th Cong., 1st Sess., pp. 1019 (Massachusetts), 1026 (New Hampshire), 1029 (Virginia), 1036 (New York), 1046 (North Carolina), 1054 (Rhode Island).

^4  3 Elliott's Debates, 324, 544. Emphasis added.

^5  The early practice under which juries were empowered to determine issues of law in criminal cases was not formally rejected by this Court until 1894 in Sparf and Hansen v. United States, 156 U.S. 51, 715, 15 S.Ct. 273, 39 L.Ed. 343, when the subject was exhaustively discussed. See also Howe, Juries as Judges of Criminal Law, 52 Harv.L.Rev. 582. This jury privilege was once considered of high value; in fact, a principal count in the impeachment proceedings against Justice Chase in 1805 was that he had denied to a jury the right to determine both the law and the fact in a criminal case-a charge which Justice Chase denied. Report of Trial of Hon. Samuel Chase (1805), appendix p. 17. This privilege is still at least nominally retained for the jury in some states. Howe, 614. For a late 19th Century statement of this view see Kane v. Commonwealth, 1879, 89 Pa. 522, 33 Am.Rep. 787.

^6  See Howe, supra, pp. 597, 601, 605, 610; Coffin v. Coffin, 4 Mass. 1, 25, 3 Am.Dec. 189; Thayer on Evidence (1898 ed.) 254. And see Lectures given by Justice Wilson as Professor of Law at the College of Philadelphia in 1790 and 1792, Thayer, 254, and Sparf and Hansen v. United States, supra, 156 U.S. at page 158, 15 S.Ct. at page 314, 39 L.Ed. 343.

^7  I assume for the purpose of this discussion without deciding the point that the adoption of the Seventh Amendment was meant to have no limiting effect on the contemporary demurrer to evidence practice.

^8  A method used in early England of reversal of a jury verdict by the process of attaint which required a review of the facts by a new jury of twenty-four and resulted in punishment of the first jury for its error, had disappeared. Plucknett, A Concise History of the Common Law (2d ed.), 121.

^9  It is difficult to describe by any general proposition the circumstances under which a new trial would be allowed under early practice, since each case was so dependent on its peculiar facts. The early Pennsylvania rule was put as follows: 'New trials are frequently necessary, for the purpose of attaining complete justice; but the important right of trial by jury requires they should never be granted, without solid and substantial reasons; otherwise, the province of jurymen might be often transferred to the judges, and they instead of the jury, would become the real triers of the facts. A reasonable doubt, barely, that justice has not been done, especially, in cases where the value or importance of the cause is not great, appears to me, to be too slender a ground for them. But whenever it appears, with a reasonable certainty, that actual and manifest injustice is done, or that the jury have proceeded on an evident mistake, either in point of law or fact, or contrary to strong evidence, or have grossly misbehaved themselves, or given extravagant damages,

the court will always give an opportunity, by a new trial, of rectifying the mistakes of the former jury, and of doing complete justice to the parties.' Cowperthwaite v. Jones, Phila.Ct.Cmn. Pleas 1790, 2 Dall. 55, 1 L.Ed. 287. For expressions in substantial accord see Maryland Insurance Co. v. Ruden's Administrator, 6 Cranch 338, 340, 3 L.Ed. 242; McLanahan v. Universal Insurance Co., 1 Pet. 170, 183, 7 L.Ed. 98. For similar State practice see Utica Insurance Co. v. Badger, N.Y.1829, 3 Wend. 102; New York Firemen Insurance Co. v. Walden, N.Y.1815, 12 Johns. 513, 7 Am.Dec. 340. The motion for new trial was addressed to the discretion of the trial judge and was not reviewable in criminal or civil cases. United States v. Daniel, 6 Wheat. 542, 548, 5 L.Ed. 326; Brown v. Clarke, 4 How. 4, 15, 11 L.Ed. 850. The number of new trials permitted in a given case were usually limited to two or three; see e.g. Louisville & N.R.R. v. Woodson, 134 U.S. 614, 10 S.Ct. 628, 33 L.Ed. 1032. The power of the judge was thus limited to his authority to return the case to a new jury for a new decision.

^10  Cf. Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636; Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177. See Rule 50(b) of the Rules of Civil Procedure; Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Berry v. United States, 312 U.S. 450, 61 S.Ct. 637, 87 L.Ed. 945.

^11  I do not mean to minimize other forms of judicial control. In a summary of important techniques of judicial domination of the jury, Thayer lists the following: control by the requirement of a 'reasonable judgment'-i.e., one satisfactory to the judge; control of the rules of 'presumption', cf. the dissenting opinion in New York Life Insurance Co. v. Gamer, 303 U.S. 161, 172, 58 S.Ct. 500, 503, 82 L.Ed. 726, 114 A.L.R. 1218; the control of the 'definition of language'; the control of rules of practice, and forms of pleading ('It is remarkable how judges and legislatures in this country are unconsciously travelling back towards the old result of controlling the jury, by requiring special verdicts and answers to specific questions. Logic and neatness of legal theory have always called loud, at least in recent centuries, for special verdicts. * * * Considerations of policy have called louder for leaving to the jury a freer hand.' 218); the control of 'mixed questions of law and fact'; the control of factual decisions by appellate courts. Thayer on Evidence (1898 ed.) p. 208 et seq.

^12  Counsel seeking the directed verdict said: 'This prerogative of the court is never exercised, but in cases where the evidence is so indefinite and unsatisfactory, that nothing but wild, irrational conjecture, or licentious speculation, could induce the jury to pronounce the verdict which is sought at their hands.' Parks v. Ross, supra, 11 How. at page 372, 13 L.Ed. 730.

^13  See also, Pleasants v. Fant, 1874, 22 Wall. 116, 22 L.Ed. 780; Oscanyan v. Arms Co., 1880, 103 U.S. 261, 26 L.Ed. 539; and Baylis v. Travelers' Insurance Co., 1884, 113 U.S. 316, 5 S.Ct. 494, 28 L.Ed. 989. For an excellent discussion of the history of the directed verdict see Hackett, Has a Trial Judge of a United States Court the Right to Direct a Verdict?, 24 Yale L. Jour. 127.

^14  Rule 50(b) of the Rules of Civil Procedure and note 10, supra.

^15  In the period of the Civil War, the formula changed slightly but its effect was the same-if the evidence so much as 'tended to prove the position' of the party, the case was for the jury. Drakely v. Gregg, 8 Wall. 242, 268, 19 L.Ed. 409; Hickman v. Jones, 9 Wall. 197, 201, 19 L.Ed. 551; Barney v. Schmeider, 9 Wall. 248, 253, 19 L.Ed. 648. Cf. United States v. Breitling, 20 How. 252, 15 L.Ed. 900; Goodman v. Simonds, 20 How. 343, 359, 15 L.Ed. 934.

^16  For examples of early respect for juries, see Morton v. Fairbanks, Mass. 1831, 11 Pick. 368; Way v. Illinois Central Railway, 1873, 35 Iowa 585. For the development in Illinois, see 8 Ill.L.Rev. 287, 481-486. For the Pennsylvania development, compare Fitzwater v. Stout, 16 Pa. 22, and Thomas v. Thomas, 1 Pa. 315, with Hyatt v. Johnston, 91 Pa. 196, 200.

^17  One additional device was the remittitur practice which gives the court a method of controlling jury findings as to damages. Arkansas Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854.

^18  In Ewing's Lessee v. Burnet, 11 Pet. 41, 51, 9 L.Ed. 624, this Court said: 'It was also their (the jury's) province to judge of the credibility of the witnesses, and the weight of their testimony, as tending, in a greater or less degree, to prove the facts relied on; as these were matters with which the court could not interfere, the plaintiff's right to the instruction asked, must depend upon the opinion of the court, on a finding by the jury in favour of the defendant, on every matter which the evidence conduced to prove; giving full credence to the witnesses produced by him, and discrediting the witness for the plaintiff'.

^19  Another phase of this same conflict arises in the use of judicial power to punish for contempt of court without allowance of jury trial. Nelles and King, Contempt by Publication, 28 Col.L.Rev. 400, 524, and, for a sharp indictment of the free use of contempt jurisdiction as basically undemocratic, 553; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192.

^20  Howe, supra, 615, 616. Howe continues: 'What seems discreditable to the judiciary in the story which I have related is the fierce resolution and deceptive ingenuity with which the courts have refused to carry out the unqualified mandate of statutes and constitutions. It is possible to feel that the final solution of the problem has been wise without approving the frequently arrogant methods which courts have used in reaching that result.'

^21  This Court has said of one type of case in Richmond & D.R.R. v. Powers, 1893, 149 U.S. 43, 45, 13 S.Ct. 748, 749, 37 L.Ed. 642: 'It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them.'

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).