Arnold v. Trans-American Freight Lines, Inc.

RAYMOND, District Judge.

This matter is before the court upon motion under Rule 39(b), Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, that the court order a trial by jury of all the issues in the case. The case became fully at issue on June 5, 1940, and no demand for jury was made as provided by Rule 38(b). It appears, however, from the record that the cause of action is for damages arising from personal injuries alleged to have resulted from defendant’s negligence. The issues are therefore those which are customarily submitted to juries, and the court is satisfied that the failure to demand jury was due to a misunderstanding between counsel in charge of the 'case, and that as soon as it was learned that a jury had not been demanded plaintiff’s counsel were prompt in filing the motion now before the court. It is the view of the court that its discretion should be exercised by granting the motion. See Peterson v. Southern Pacific Co., D.C., 31 F.Supp. 29 ; and Rogers v. Montgomery Ward & Co., D.C., 26 F.Supp. 707 .

The demand for jury is granted and an order will be entered accordingly.