Page:Harvard Law Review Volume 32.djvu/748

712 712 HARVARD LAW REVIEW seem clear however that usually a new trial is not what is needed. If the state of the evidence was such as to justify taking the case from the jury in the first place, it would normally follow that it would justify the rendition of a judgment notwithstanding the verdict. In rend'ering such judgment the court is in effect doing after the trial what admittedly should have been done at the trial. Since there was no question on which it was the jury's province to find, its finding should be regarded as immaterial.^ Accordingly in England by rule of court,* and in several states by statute," and in a few by judicial decision,^ the trial court on motion or the appellate court on appeal may order judgment notwith- standing the verdict when one of the parties moved at the trial for a nonsuit or directed verdict and the court wrongly denied the motion.^ But suppose that no attempt was made at the trial to take the case from the jury, but that it is subsequently discovered that the verdict was not supported by any evidence, and that if a motion had been made for a directed verdict it should have been granted. The House of Lords (Lord Finlay, L. C, and Lord Shaw, dissenting) has recently held in Banbury v. Bank of Montreal, [1918] A. C. 626, that the Court of Appeal need not grant a new trial but may in its discretion give judgment notwithstanding the verdict.^ Now it is well settled that the trial court (or in England the Court of Appeal) may in its discretion grant a new trial on a ground which might have been but was not urged at the trial. ^ In such a case it is not error for the court either to grant or to refuse to grant a new trial. It would seem that the same principle should apply to the ordering of judgment notwithstanding the verdict. If the plaintiff has had his day in court, if he has had a chance to present all his evidence, and if that evidence is insufiicient as a matter of law to justify the verdict in his favor, there is no reason in the absence of special circumstances (such as accident, surprise, newly discovered evidence or the like ^°) why he should be entitled as a matter of right to another day in court. As Lord Atkinson » See 31 Harv. L. Rev. 688-89. inferences of fact and to give any judgment and make any order which ought to have been made, and to make such fiurther or other order as the case may require." In many English cases the court has exercised the power here given it. See Skeate v. Slaters, [1914] 2 K. B. 429; Winterbotham & Co. v. Sibthorp, [1918] i K. B. 625. « Hollingsworth v. Skelding, 142 N. C. 246, 55 S. E. 212 (1906); Anderson v. Phillips (N. D. 1918), 169 N. W. 315 (semble); Dowagiac Mfg. Co. v. Schroeder, 108 Wis. 109, 84 N. W. 14 (1900); Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800 (1903). And see Astley v. Garnett, 20 Brit. Col. R. 528 (1914)- ' In Slocum v. N. Y. Life Insurance Co., 228 U. S. 364 (1913), it was held that these principles could not be followed in the federal courts because it violated the Seventh Amendment. For a criticism of this decision, see 26 Harv. L. Rev. 732; 63 Univ. of Pa. L. Rev. 585; Rep. Amer. Bar Assoc, 1913, 561. 169 N. W. 315 (N. D. 1918). 9 Farr v. Fuller, 8 Iowa, 347 (1859); Standard Oil Co. v. Amazon Insurance Co., 79 N. Y. 506 (1880). But see Valerius v. Richard, 57 Minn. 443, 59 N. W. 534 (1894). " Alink V. Chicago, etc. Ry. Co. 169 N. W. 250 (Minn. 1918). All the judges in Banbury v. City of Montreal admit that if it is probable that more evidence would have been introduced by the plaintiff if a motion for a nonsuit had been made, then a new trial would be granted.
 * Order 58, Rule 4 provides: "The Court of Appeal shall have power to draw
 * Mass. L., 1909, c. 236; Minn. Gen. Stat., § 7998; Pa. Laws, 1905, No. 198.
 * The opposite result was reached (Robinson, J., dissenting) in Anderson v. Phillips