Bosley v. Southern Bell Telephone & Telegraph Co. ( 1941 )

DAWKINS, District Judge.

The question presented in these cases is as to whether or not the plaintiffs’ application for trial by jury shall be allowed. The suit was filed on December 31, 1940, and exactly at the end of the twenty days for appearance, defendant filed its answer. The affidavits dispute the question of whether or not the answer was delivered in person by counsel for defendant or sent through the mail. In either event, however, it was beyond the ten days prescribed by rule 38(b) of the New Rules of Federal Procedure, 28 U.S. C.A. following section 723c.

The action is one for damages for personal injury, which ordinarily is peculiarly a jury case. It is said by defendant that there are complicated questions of law on the question of agency, but there seems no reason why the court could not properly instruct the jury on these matters. While the plaintiffs are not entitled as a matter of right under the Rules to trial by jury, I believe the court has a discretion to allow the jury anyway. The affidavits by the plaintiffs’ counsel are to the effect that the failure to ask for ■a jury was an oversight, and in any event, the delay was not more than five days.

My conclusion is that both of these cases should be tried by jury and it is accordingly so ordered.