Verdia JONES, Plaintiff-Appellant, v. Robert BIRDSONG, Et Al., Defendants-Appellees , 679 F.2d 24 ( 1982 )

COLEMAN, Circuit Judge.

The opinion of the District Court is reported, Jones v. Birdsong, 530 F.Supp. 221 (N.D., Miss., 1980).

We heard oral argument in New Orleans on November 4, 1981. Upon consideration of the record, briefs, oral argument, and published opinion of the District Court, we affirm.

We need not here rehash or rephrase the facts as found in the detailed, carefully written District Court opinion. It is quite clear that the findings were not clearly erroneous, Rule 52(a), Federal Rules of Civil Procedure.

Only one point remains for disposition.

Never at any time did Mrs. Jones serve a written demand for trial by jury as required by Rule 38(b) of the Federal Rules of Civil Procedure. Never at any time did she make known to the District Judge that she desired a jury trial. Now, on appeal, she attempts to argue that the District Court improperly denied her the right of a jury trial as to the federal and state claims for compensatory and punitive damages.

We need not decide, and we offer no intimation, as to whether if she had properly asserted it Mrs. Jones would have been entitled to a jury trial as now claimed.

Rule 38(b), supra, provides that any party may demand trial by jury of any issue triable of right by a jury by serving a written demand therefor at any time after the commencement of the action and not later than ten days after the service of the last pleading directed to such issue. Subsection (d) of the Rule provides that the failure of the party to serve a demand as required by the Rule and to file it as required by Rule 5(d) waives the right to a jury trial.

In United States v. 110 Bars of Silver, Etc., 508 F.2d 799 (5th Cir., 1975), cert. denied 423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89 (1975), we held that the failure to file a Rule 38(b) demand for a jury within ten days from the service of the last pleading waived the right.

This takes us back to Eastside Church of Christ, et al. v. National Plan, Inc., et al., 391 F.2d 357 (5th Cir., 1968), cert. denied, 393 U.S. 913, 89 S.Ct. 234, 21 L.Ed.2d 198 (1968), where we find the following:

“[T]he contention that appellants were denied a jury trial is frivolous. They did not seek a jury trial. They made no objection to proceeding without a jury. The idea of a jury trial was first raised in this Court through reliance on a request for jury trial made by two of the defendants who are not involved in the cause before us”. [Opinion by Judge Griffin Bell].

In the years before the advent of the Federal Rules of Civil Procedure, the Supreme Court had held that where a party is present and represented by counsel and goes to trial before the Court without objection or exception, he has voluntarily waived his right to a jury and must be held to the legal consequences of such a waiver. Kearney v. Case, 12 Wall 275, 79 U.S. 275, 20 L.Ed. 395 (1870); Perego v. Dodge, 163 U.S. 160, 16 S.Ct. 971, 41 L.Ed. 813 (1896).

Now, let us see what happened in this case.

The defendants filed their answer to the original complaint and timely filed a request for a jury trial for Mrs. Jones’ back pay claims, compensatory damages, and punitive damages. Mrs. Jones moved to strike the demand for a jury trial on the back pay issue. The Court responded by denying a jury trial on all issues. Mrs. Jones raised no objection to this ruling.

Mrs. Jones then filed an amended complaint. There was no Rule 38(b) motion for a jury trial and none was ever filed. However, at a pretrial conference before a magistrate the plaintiff moved verbally for a bifurcated trial of the legal and equitable issues, with a jury trial on the legal issues. The magistrate denied the motion. This action was never called to the attention of the District Judge. There was no objection filed. When the case came to trial on the merits before Judge Ready, the plaintiff said absolutely nothing about the denial of the motion at the hands of the magistrate. Not a word was said about desiring a jury trial. Mrs. Jones now attempts to evade all this by saying that any complaint or objection would have been useless because the Judge had already denied the defendants’ request for a jury trial. This is an attempted evasion of the undisputable fact that when the Court made that ruling at an early stage of the litigation the plaintiff had offered no remonstrance or objection whatever, thus leading the Court to believe that she agreed with that result.

Under the circumstances, the plaintiff was under a special duty to speak out about any desire for a jury. Her counsel knew, or was certainly charged with the knowledge, that in the case of Lynch v. Pan American World Airways, Inc., 475 F.2d 764 (5th Cir., 3973), in a racial discrimination case which sought reinstatement with back pay, compensatory damages, and punitive damages, the Fifth Circuit held that the trial court properly struck the plaintiff’s motion for a jury trial because the action was equitable in nature. Unless the point were raised and unless there was convincing argument to the contrary, Mrs. Jones should have expected that the District Judge would consider himself bound by the ruling in Lynch.

In conclusion, we cannot countenance an effort to reverse the District Court from ambush.

As already pointed out, plaintiff sought no review of the magistrate’s ruling, which was made after the filing of an amended complaint. We have repeatedly held that in the absence of exceptional circumstances provoking a miscarriage of justice questions that are not presented to or passed on by the trial court (here, the ruling of the magistrate) will not be considered on appeal. D. H. Overmyer Company v. Loflin, 440 F.2d 1213 (5th Cir., 1971), cert. denied 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90 (1971); Capps v. Humble Oil & Refining Company, 536 F.2d 80 (5th Cir., 1976); United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (5th Cir., 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1975); Alabama Great Southern Railroad Company v. Allied Chemical Corporation, 501 F.2d 94 (5th Cir., 1974), rehearing en banc, 509 F.2d 539 (5th Cir., 1975).

What it all comes down to is that plaintiff had repeated opportunities to file a Rule 38(b) motion for a jury trial and she chose not to do it. When Judge Ready denied the defendants’ motion for a jury trial the plaintiff knew that she could no longer rely on that motion to obtain a jury trial for herself but said not a word, leaving the Judge to believe that she agreed with that result. She had every opportunity to ask the trial court to review and reverse the denial of a jury trial entered by the magistrate. She chose to pursue a policy of total silence. When the trial began there was not a word said about the lack of a jury. Now that the facts have been found against her contentions, amply supported by the record, she does here .what she persistently chose not to do below — she cries that she was denied the right of trial by jury.

Leaving aside the issue of whether she would have been entitled to a jury if she had properly sought such a trial, we firmly decline the suggestion that the District Court should be cast in error.

AFFIRMED.