Committee Comments on 1973 Adoption

This rule is identical to federal Rule 50 except for expansion of the time limits therein from 10 to 30 days and express retention of the scintilla evidence rule.

Rule 50(a) and 50(b) supplant Alabama procedural devices which formerly operated in this area. The motion for a directed verdict at the close of the opponent’s evidence is a complete substitute for the demurrer to the evidence, the motion to exclude the evidence, and the motion for the affirmative charge at the end of the opponent’s evidence. The motion for a directed verdict performs every function that these earlier devices did and hence, they are abolished, and it is procedurally an improvement since a party can test the sufficiency of his opponent’s evidence by moving for a directed verdict without waiving his own right to present evidence if the motion is denied. Alabama law heretofore has been to the contrary. Code 1940, Tit. 7, § 244; McCarty v. Williams, 212 Ala. 232, 102 So. 133 (1924); Stewart Bros. v. Ransom, 200 Ala. 304, 76 So. 70 (1917). But cf. Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 74 So. 2d 266 (1954).

The motion for a directed verdict at the close of all the evidence will be in all respects a substitute for the peremptory charge. Under Rule 50, a motion for a directed verdict will be granted or denied in any situation where the peremptory charge would be granted or denied under present Alabama law. See McElroy, The General Affirmative Charge with Hypothesis, 1 Ala.L.Rev. 151, 152 (1948).

Alabama has also had a somewhat unique procedure known as the “affirmative charge with hypothesis.” Where the party having the burden of proof has made out his case by uncontradicted testimony, the case is sent to the jury but with a special direction that “if the jury believe the evidence, it must find for the plaintiff.”AIlen v. Southern Coal & Coke Co., 205 Ala. 363, 87 So. 562 (1921). In federal courts and in most states, the case is not submitted to the jury under the circumstances described; instead the court directs a verdict. Rule 50(a) last sentence clearly provides that the order granting a motion for a directed verdict is effective without any assent of the jury. This eliminates the illogical ritual required under former practice. But the differences between the former Alabama procedure and that followed elsewhere are not as great in practice as they are in theory. Most judges regard the affirmative charge with hypothesis as a form of peremptory, and give it in such a fashion as to be construed as peremptory charge by the jury McElroy, The General Affirmative Charge with Hypothesis, 1 Ala.L.Rev. 151, 152 (1948). And if the jury finds a verdict contrary to the affirmative charge with hypothesis, the verdict must be set aside as contrary to the instructions of the court. Piedmont Fire Ins. Co. v. Tierce, 245 Ala. 415, 17 So. 2d 133 (1944); Penticost v. Massey, 202 Ala. 681, 81 So. 637 (1919). Thus while the affirmative charge with hypothesis submits the credibility of the witnesses to the jury, in effect the jury is not permitted to disbelieve the witnesses. In practice the jury is not allowed to disbelieve the witnesses, and in theory there is no reason why they should be. “If the testimony delivered upon the trial is unimpeached, either by the manner of the witness, his knowledge of the facts, his connection with the parties or by contradictions, or for some other legal reason, the jury must treat it as true. * * * Any other course would imperil the fairness and impartiality of the trial.” Crawford v. State, 44 Ala. 382, 386 (1870). For the reasons outlined, Rule 50(d) abolishes the affirmative charge with hypothesis.

The motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in just the same way as does the motion for directed verdict at the close of all the evidence. In a doubtful case the court may prefer to deny the motion for a directed verdict, and consider the attack on the sufficiency of the evidence subsequently on motion for judgment n.o.v. This course gives the court more time to consider the matter, the verdict of the jury, if in accord with the judge’s own ideas as to the sufficiency of the evidence, may settle the matter, and after verdict the court may grant a new trial on the ground that the verdict is contrary to the great weight of the evidence, instead of directing judgment. See 9 Wright & Miller, Federal Practice & Procedure, § 2533, n. 98 (1971).

A party must make a motion for a directed verdict in order to be entitled to a judgment notwithstanding the verdict. A motion for judgment n.o.v. without having moved for a directed verdict at the proper time will be denied. See Starling v. Gulf Life Ins. Co., 382 F.2d 701 (5th Cir. 1967); 9 Wright & Miller, Federal Practice & Procedure, § 2537, a. 31 (1971).

Rule 50(c) covers simultaneous or alternative motions for judgment a. o. v. and new trial. Under Rule 50(b), the trial court has several alternatives available when confronted with a motion for judgment n.o.v. The court may either 1) let the verdict stand and deny the motion; 2) reopen the judgment and order a new trial; 3) reopen the judgment and direct entry of a judgment as if the verdict had been directed in behalf of the movant.

The amendments seek to codify certain procedures that have developed from various cases, particularly, Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147 (1940) and McIlvine Patent Corp. v. Walgreen Co., 138 F.2d 177 (7th Cir. 1943). In an effort to eliminate unnecessary remands and evidentiary review by stale or unfamiliar minds, Rule 50(c) was devised. The procedure, in effect, requires the judge who has granted judgment n.o.v. to also render an advisory opinion on any alternative motion for a new trial so the appellate court might have the benefit of this view in the event they reverse him on his grant of a judgment n.o.v. Thus, the appellate court can have an answer to the question, “Now that you have found out you erred in giving the verdict-loser a judgment n.o.v., would you give him a new trial?” Note that the new trial ruling if conditionally granted, is not binding on the appellate court.

1971 F.R.C.P. 50(c)(2) deals with the verdict-winner who has seen the trial court grant judgment n.o.v. against him. He may then seek a new trial which, if granted, suspends finality of the order granting judgment n.o.v.

Subdivision (d) deals with the verdict-winner who has also successfully resisted a motion for judgment n.o.v. As appellee, he is permitted to urge new trial grounds in the event the appellate court concludes that judgment n.o.v. should have been entered.

Subparagraph (e) expressly abolishes the demurrer to the evidence, the motion to exclude the evidence, and the affirmative charge with or without hypothesis. This subdivision further retains the scintilla evidence rule and, therefore, while federal cases will be helpful in understanding the procedure this rule provides, they are not authoritative as to when the case can be withdrawn from the jury, since the scintilla rule is not followed in federal court.

Committee Comments to October 1, 1995, Amendment to Rule 50

Subdivision (a). This amendment incorporates recent amendments and a proposed amendment to F.R.Civ.P 50(a). It renames the motion for a directed verdict as a motion for a judgment as a matter of law. This nomenclature facilitates a generic reference to a course of action that also resolves cases at the summary judgment stage. This revision articulates the standard in terms consistent with prevailing law. It also contemplates entry of judgment at any time before submission of the case to the jury.

Subdivision (b). This amendment incorporates recent amendments to F.R.Civ.P 50(b) but preserves the thirty- (30-) day time in which to file a post-judgment motion.

Subdivisions (c) and (d). This amendment incorporates recent amendments to F.R.Civ.P 50(c) made necessary by changes in nomenclature.

This amendment also deletes as obsolete former subdivision (e), which abolished the demurrer to the evidence, the motion to exclude the evidence, and the affirmative charge with or without hypothesis and which retained the scintilla rule.