RIVES, Circuit Judge.
After the jury had rendered a verdict for the defendant, and the plaintiff had moved for a new trial, the trial court, with defendant's consent but against plaintiff's objection, entered a judgment against the defendant for the sum of Five Thousand Dollars and one-half of the costs of the court, and denied plaintiff's motion for new trial. The plaintiff appealed, and the question to be decided is whether, under the facts of this case, the action of the trial court was erroneous under the teachings of Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603. The facts are sufficiently detailed in the opinion of the District Court, reported in 114 F.Supp. 23 et seq.
It has been often said that a new trial is usually not a matter of right.
The discretion as to granting or refusing a new trial on all or any part of the issues is a legal discretion and is vested in the district court and in that court alone. Marsh v. Illinois Cent. R. Co., supra, notes 2 and 3, 175 F.2d at pages 499, 500; Rule 59(a), Fed.Rules Civ.Proc. 28 U.S.C.A. In the Marsh case, supra, the district court did not exercise its full discretion because it granted a judgment notwithstanding the verdict (set aside on appeal) and assumed that, having done so, it should deny the motion for new trial. The case was remanded with direction to the judge, if he continued of the same opinion, to grant a new trial. The situation here is similar. Because the district court granted a judgment against the defendant (which must be set aside),
Reversed and remanded.
"* * * that case (referring to Dimick v. Schiedt, supra), decided as it was by a closely divided court, is authority only for its own facts, and those facts are not present here. Those facts as shown by the opinions of the Circuit Court of Appeals, and of the Supreme Court, were that the trial was attended with serious error for which a new trial ought to have been granted at common law, and the holding was that though Federal decisions had furnished a precedent for curing such errors by remittitur when the verdict was not the result of passion or prejudice, there were no authoritative precedents, either English or American, for curing them by additur." 99 F.2d at pages 833, 834.
"The case stood below and stands here, then, as one in which the record shows an errorless trial, and no right in the Association therefore, at common law, to have a new trial granted.
"Cross appellants are thus in the position of complaining of a judgment which gave them more than they could claim under the verdict, a matter not at all to their injury, but greatly to their advantage. Under these circumstances, we think it inescapable that the rule of Dimick v. Schiedt, announced in, and applied to, a trial in which at common law a new trial ought to have been granted for error, is wholly without application here." 99 F.2d at pages 834-835.
"* * * the common law power of the trial judge to grant a new trial in his discretion, irrespective of error and merely because he does not think the verdict right, is fully preserved. Parsons v. Bedford, Breedlove & Robeson, 3 Pet. 433, 7 L.Ed. 732." Marsh v. Illinois Cent. R. Co., 5 Cir., 175 F.2d 498, 499.
When the trial court abuses its discretion, that amounts to a legal error and may be reviewed as such. Virginian Ry. Co. v. Armentrout, 4 Cir., 166 F.2d 400, 407, 408, 4 A.L.R.2d 1064; 6 Moore's Federal Practice, 2nd. ed., Para. 59.08 (6), p. 3827, Notes 29 and 30.
"The term `discretion' denotes the absence of a hard and fast rule. The Styria v. Morgan, 186 U.S. 1, 9, 22 S.Ct. 731, 46 L.Ed. 1027. When invoked as a guide to judicial action, it means a sound discretion, that is to say, a discretion exercised not arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result."