United States v. Generes/Separate White
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN joins.
While I join Parts I, II, and III of the Court's opinion and its judgment of reversal, I would remand the case to the District Court with directions to hold a hearing on the issue of whether a jury question still exists as to whether taxpayer's motivation was "dominantly" a business one in the relevant transactions under 26 U.S.C. §§ 166 (a) and (d). Federal Rule of Civil Procedure 50 (d) provides that when an appellate court considers a motion for judgment n.o.v., it may "determin[e] that the appellee is entitled to a new trial, or... [direct] the trial court to determine whether a new trial shall be granted." Because of the drastic nature of a judgment n.o.v., this Court has emphasized that such motions should be granted only when the procedural prerequisites of the Federal Rules have been strictly complied with. Cone v. West Virginia Pulp and Paper Co., 330 U.S. 212, 215-217 (1947). In the present case, this Court has the power to reverse the judgment without the grant of a new trial since the Government properly moved for a judgment n.o.v. (or in the alternative, for a new trial) in the District Court. Neely v. Eby Construction Co., 386 U.S. 317 (1967). The circumstances here are inappropriate for such a decision, however, since taxpayer has never had an opportunity to be heard, after it is determined that his verdict cannot stand, as to whether factual issues remain on which he is entitled to a new trial. A decision [p113] that a verdict must be overturned because the trial judge applied an erroneous evidentiary standard is unlike certain other appellate rulings that an error of law was made because it inevitably presents an accompanying factual question: is there enough evidence to present a jury question under the proper evidentiary standard? Neely v. Eby Construction Co., supra, at 327. This Court has often repeated that a trial court is the most appropriate tribunal to determine such factual questions, Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481-482 (1933); Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 253 (1940), since appellate courts are awkwardly equipped to resolve such issues, particularly in the absence of adversary argument, and since the trial judge has an extensive and intimate knowledge of the evidence and issues "in a perspective peculiarly available to him alone." Cone v. West Virginia Pulp & Paper Co., supra, at 216. I would therefore allow the trial court to decide whether a new trial is merited in this case.