CRAVEN, Circuit Judge:
Primarily this appeal questions the extent of the power of a federal trial judge to comment on the evidence in the course of his charge to the jury. In order to understand what we hold it will be necessary to paraphrase much of the evidence. For just as jury instructions must always "be drawn with reference to the particular facts of the case on trial," Collazo v. United States, 90 U.S. App.D.C. 241, 196 F.2d 573, 578, cert. denied, 343 U.S. 968, 72 S.Ct. 1065, 96 L.Ed. 1364 (1952), so also we cannot intelligently
Appellant George Wright and appellee Sil Evans engaged in the coal mining business in the corporate form of Kentucky Mason Coal Company. Evans was front man and apparently chief operator, and Wright put up most if not all of the corporate capital. When things did not go well, Wright resorted to self-help by writing a check on the corporation in the amount of $115,000 to get part of his investment out. Not surprisingly this led to a lawsuit (with which we are concerned only as background), which resulted in a settlement agreement entered into on April 24, 1971, that divided the assets of Kentucky Mason between the two parties. One of the provisions of the agreement provided that Wright and Evans would divide equally any corporate tax refund that might be received by Kentucky Mason subsequent to the date of the agreement. Early in 1972 Wright received $13,607.01 in refund of 1971 federal and state taxes paid by Kentucky Mason. Although agreeing that he owed Evans half of this amount ($6,803.51), Wright nevertheless refused to divide the funds on the ground that he was entitled to deduct from Evans' one-half share the sum of $2,575 that Evans had received from Kentucky Mason some nine days prior to the April 24 settlement agreement. Wright admitted that he had learned of Evans' receiving the $2,575 early in May 1971, shortly after the settlement agreement, and thus had known of it for at least 13 months without ever mentioning it, much less protesting it, to anybody. Evans' excuse for paying himself the $2,575 was that he had previously turned over to the corporation by depositing it to a corporate account known as "Kentucky Mason No. 2," $5,000 of his dividend income and $215 additional personal funds.
The case thus went to the jury in this posture: George Wright unquestionably owed Sil Evans one-half of the tax refund ($6,803.51) unless (1) Wright was entitled to set off against Evans' share the sum of $2,575 that Evans had paid himself out of corporate funds, or unless (2) Wright owed Evans not only one half of the tax refund but also the $5,215 contributed by Evans for corporate purposes. The jury returned a verdict in Evans' favor for one-half the tax refund, but denied both Evans' additional claim for $5,215 and Wright's setoff. Wright claims on appeal that the trial judge unfairly prejudiced his claim to a setoff by impermissible commentary on the evidence during his charge to the jury.
We begin our consideration of Wright's contention with the premise that a United States district judge is not a bump on a log. Nor is he a referee at a prize fight. He is, instead, the governor of the trial with the power of the common law judge to implement justice. And this power extends to his charge to the jury. As stated in the leading case Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933):
See also Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 43 L.Ed. 873 (1899). In this tradition Rule 105 of the Proposed Rules of Evidence for United States Courts and Magistrates states the prerogative in clear terms:
The principle has now been recognized by the treatises:
74 Am.Jur.2d Trial § 657 (1974).
Id. § 658.
Of course, the district judge's power of summary and comment is not unbounded. As stated in Quercia, 289 U.S. at 470, 53 S.Ct. at 699 (citations omitted):
And the judge below conformed to these constraints. In a charge remarkably free of confusing "boilerplate abstractions," United States v. Lozaw, 427 F.2d 911, 916 (2d Cir. 1970), the able trial judge in this case began by saying that the members of the jury were the triers of fact, that the jury should not infer from rulings on the evidence or any admonishment given to attorneys that the court was "for or against any party to this suit," that the jury were "the sole judges of the credibility of the witnesses and the weight of the evidence," and that it was within their province to give "the testimony of each witness such credibility as you may think it deserves."
Then the trial judge got "to the cause of action" and very clearly and concisely applied the law to the facts as the jury should find them to be. See United States v. Holley, 502 F.2d 273 (4th Cir. 1974). Helpfully, he directed their attention to what he termed "essentially three matters to be considered by you in this case." He noted that the contract called for a division of any tax refund, and that Wright had admitted that he owed Evans $6,803.51 as his one-half share. He then took up Evans' contention that he was entitled not only to his one-half of the tax refund but also to $5,215 which he had deposited to the account of Kentucky Mason Mine No. 2 for corporate purposes. The judge noted that the settlement agreement provided that the obligations of Mine No. 2 were to be expressly assumed by Evans. It was then that he "commented upon the evidence," and exactly what he said is quoted in the margin.
The trial judge thereupon directed the attention of the jury to Wright's claim for a setoff of the $2,575 which Evans had paid himself out of corporate funds. He noted that Wright knew of the check soon after the execution of the settlement agreement and certainly by May 1971, and yet never mentioned the claimed setoff until a year later and several months after the books of the company were closed out by a certified public accountant.
Then the judge again commented on the evidence as fully set out in the margin.
Although there is substantial authority that is even more permissive, we are inclined to think that ordinarily a district judge should not express an opinion on an ultimate issue in a jury trial, e. g., instruct that negligence has been proved, Travelers Ins. Co. v. Ryan, 416 F.2d 362 (5th Cir. 1969); Trezza v. Dame, 370 F.2d 1006 (5th Cir. 1967), and that his doing so may amount to a directed verdict, Nunley v. Pettway Oil Co., 346 F.2d 95, 99 (6th Cir. 1965). But cf. Doyle v. Union Pac. Ry., 147 U.S. 413, 422-430, 13 S.Ct. 333, 37 L.Ed. 223 (1893); United States v. Philadelphia & Reading R. R., 123 U.S. 113, 8 S.Ct. 77, 31 L.Ed. 138 (1887); Tipton v. Socony Mobil Oil Co., 315 F.2d 660, 661-662 (5th Cir.), rev'd per curiam on other grounds, 375 U.S. 34, 84 S.Ct. 1, 11 L.Ed.2d 4 (1963). But that is not what we have here. In this case the district judge's comments amounted, we think, to no more than fairly assisting the jury in interpreting the April 24, 1971, settlement agreement. The basic question was whether that agreement took into account and wiped out both Evans' additional claim for $5,215 and Wright's setoff claim.
Wright also challenges the trial judge's sending the jury back to reconsider what Wright claims was a perfectly good verdict. The jury first returned a verdict for Evans for one half of the federal tax refund "plus interest from May 1972," the month Wright received the refund. Because the jury had by oversight failed to consider the state tax refund, the judge sent it back with instructions to add Evans' share of that refund to its verdict. No one questions the propriety of that action. On its return, however, the jury's verdict — though correctly including Evans' shares of both federal and state refunds — contained the phrase "plus interest until paid." The judge noted to the jury the discrepancy between its two verdicts on the matter of interest, and the fact that under its second verdict interest would start from the date of judgment, i. e., September 21, 1973. Stating that "I don't know what you intend," the judge sent the jury out again to consider whether they wanted to state a date for interest to start. He also told the jurors they could leave the verdict as it was if they wished, that it was entirely up to them. The jury retired, and four minutes later returned a verdict stating that interest was to begin May 1, 1972.
Wright objects to the judge's sending the jury out to consider the interest point, because the jury's addition of a date cost him over a year's additional interest. He argues that the judge exceeded his authority in sending the jury out again, since its second verdict, silent as to the date for the start of interest, was unambiguous and perfectly proper.
We see no merit in this argument. While the jury's second verdict was on its face unambiguous, we agree with the trial judge that it was rather puzzling. There was no explanation for dropping the starting date for interest which had been in the first verdict. In this context it was natural for the trial judge to wonder whether the jury had intended to omit reference to a starting date, or whether instead the jurors had simply overlooked that matter in revising their verdict. His comments did no more than express his puzzlement and offer them an opportunity to correct their oversight if indeed that was what it was. He did not in any way suggest to them what to do. Furthermore, it took the jury only four minutes to add the starting date for interest; this strongly suggests that its omission had indeed been an oversight. We hold that sending the jury out again, while not required for a valid verdict, was within the sound discretion of the district judge. Cf. 53 Am.Jur. Trial § 1099.
Neither counsel objected to or requested any modification of this narration of the evidence, although they were afforded the opportunity to do so under Rule 51.
On its face, this clause would appear to bar both Evans' $5,215 claim and Wright's setoff claim, since the transactions giving rise to both occurred before the date of the settlement agreement.