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Myers v. Manchester Insurance Indemnity Co.

United States Court of Appeals, Fifth Circuit
Apr 26, 1978
572 F.2d 134 (5th Cir. 1978)

Summary

holding that appellant waived its challenge to appellee's capacity by failing to raise the matter until the post-trial conference

Summary of this case from Roth v. Islamic Republic of Iran

Opinion

No. 75-1346.

April 26, 1978.

George Mathews, Baton Rouge, La., for defendants-appellants.

Edward J. Norton, Jr., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before MORGAN and GEE, Circuit Judges, and KING, District Judge.

United States District Judge for the Southern District of Florida, sitting by designation.


In this diversity action, sounding in tort, appellant contends that appellee was without legal capacity to sue, as provided by F.R.C.P. Rule 17(b), that the evidence did not support the finding of liability, and that the award was excessive. We disagree with appellant and affirm. As held below, at the pre-trial conference, the parties stipulated that capacity existed in the appellee. Additionally, appellant failed to object to lack of capacity until the post-trial conference. Under these circumstances we hold that appellant waived its challenge to the appellee's capacity. Cf. Pace v. General Electric Co., 55 F.R.D. 215 (D.C.Pa. 1972). (Court permitted waiver of Rule 17(a) objection to real party in interest unless jurisdiction was impaired.) Additionally, we are convinced the proper tort law was applied and that the determination of negligence was not clearly erroneous. F.R.C.P. Rule 52(a), 28 U.S.C.A. Finally, we are not persuaded that the amount of the award was so excessive as to be unreasonable. Machado v. States-Isthmian Agency, Inc., 411 F.2d 584, 586 (5th Cir. 1969). We therefore

AFFIRM.


Summaries of

Myers v. Manchester Insurance Indemnity Co.

United States Court of Appeals, Fifth Circuit
Apr 26, 1978
572 F.2d 134 (5th Cir. 1978)

holding that appellant waived its challenge to appellee's capacity by failing to raise the matter until the post-trial conference

Summary of this case from Roth v. Islamic Republic of Iran

finding that a party had "waived its challenge to [the defendant's] capacity to be sued" where issues of capacity did not implicate jurisdictional questions and the party had waited until the post-trial conference to raise the issue

Summary of this case from Sharpe v. Prince George's Cnty. Gov't
Case details for

Myers v. Manchester Insurance Indemnity Co.

Case Details

Full title:MRS. MARLIN MYERS, INDIVIDUALLY AND FOR USE AND BENEFIT OF HER MINOR…

Court:United States Court of Appeals, Fifth Circuit

Date published: Apr 26, 1978

Citations

572 F.2d 134 (5th Cir. 1978)

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