Clark v. Atlantic Stevedoring Co. , 3 F.R.D. 35 ( 1943 )

BYERS, District Judge.

Motion for a separate trial pursuant to Federal Rules of Civil Procedure, rule 42(b), 28 U.S.CA. following section 723c.

This is a Jones Act case, to recover damages for personal injuries. The answer pleads a general release, and the reply asserts misrepresentations which induced the plaintiff to sign it, and that he tendered back the consideration, which was returned to him, but that he has not accepted it, i.e., he retained the check and tenders it into court.

The defendant asks for the separate trial on this issue, since the release was obtained by the representative of an insurance company, which will develop on the trial to the defendant’s' prejudice.

The plaintiff is in the Army now, and his attorney says that he fears his client cannot obtain two furloughs for two trials; and otherwise opposes the motion.

It may be doubted if the average jury today is as ingenuous as the law seems to suppose, concerning the extent to which insurance companies participate in negligence litigation and bear its financial burdens.

In any case, the defendant has tendered the issue, and I cannot observe in the motion papers anything to justify the conelusion that prejudice to the defendant is likely to develop by holding one trial of all the issues in the case.

Motion denied, without prejudice to the renewal thereof in connection with the actual proceedings at the trial. The Judge who is to preside is not to feel himself constrained by this disposition at the motion term.

Settle order.