City of Morgantown v. Royal Insurance Company/Dissent Black
Mr. Justice BLACK, with whom Mr. Justice RUTLEDGE concurs, dissenting.

I think it an undesirable practice for this C urt to overrule past cases without saying so. The effect of the Court's holding here is to overrule Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176, decided by a unanimous Court in 1942. The Court's holding today rejects the interpretation of § 129 of the Judicial Code, 28 U.S.C. § 227, as amended 28 U.S.C. § 1292, 28 U.S.C.A. § 1292, given that section in the Ettelson case and in Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440. And to support its new interpretation of that section the Court now adopts reasons and arguments that were expressly urged and expressly rejected in the Enelow and Ettelson cases.

Today the Court brushes aside the Enelow and Ettelson cases, implying that this, unlike either of the other two, is 'a case of a judge making a ruling as to the manner in which he will try one issue in a civil action pending before himself.' But this was true in the Enelow and Ettelson cases. In the Enelow case the Court said, 293 U.S. at page 382, 55 S.Ct. at page 311, that 'it makes no difference that the two cases * * * are both pending in the same court, in view of the established distinction between 'proceedings at law and proceedings in equity in the national courts and between the powers of those courts when sitting as courts of law and when sitting as courts of equity." The Court also implies that this case can be distinguished from the Enelow and Ettelson cases because the order in this case is 'interlocutory in form and substance.' But this was true in the Enelow and Ettelson cases. In the Enelow case the Court said, 293 U.S. at page 383, 55 S.Ct. at page 311, that 'although interlocutory, it (the order) was appealable * * * under section 129, as amended.' In the Enelow case the order of the trial court held appealable, 293 U.S. page 381, 55 S.Ct. page 311, required hearing of the equitable issue raised 'in advance of the trial by jury at law of any purely legal issues.' That was precisely the effect of the trial court's order in this case; it required hearing of the equitable issue of reformation in advance of a trial by jury of the legal issues raised by the counterclaim. Today the Court says this order is not an 'injunction * * * in any ordinary understanding of the word * * *.' In the Enelow case this Court said that such an order 'in effect grants or refuses an injunction * * *.' 293 U.S. page 383, 55 S.Ct. page 311.

The Court today seems to rest its departure from the Enelow case on the Federal Rules of Civil Procedure and their purpose as set out in Rule 1 'to secure the just, speedy, and inexpensive determination of every action.' The Ettelson case, supra, came to this Court after adoption of these rules. The insurance company there specifically pointed to Rule 1 as a reason why this Court should not follow the Enelow case. We unanimously rejected the contention. We pointed out, 317 U.S. at page 191, 63 S.Ct. at page 164, that 'As in the Enelow case * * * the result of the District Judge's order is the postponement of trial of the jury action based upon the (insurance) policies; and it may, in practical effect, terminate that action. It is as effective in these respects as an injunction issued by a chancellor. * * * The plaintiffs are * * * in no different position than if a state equity court had restrained them from proceeding in the law action. Nor are they differently circumstanced than was the plaintiff in the Enelow case. The relief afforded by section 129 is not restricted by the terminology used. The statute looks to the substantial effect of the order made.'

Thus despite our unanimous rejection of the contention in Ettelson the Court now holds that the Rules of Civil Procedure have displaced both the Enelow and Ettelson interpretation of § 129 of the Judicial Code. The basis for overruling the Enelow and Ettelson cases appears to be the Court's hostility to 'piecemeal appeals' and the Court's belief that overruling the two cases will promote 'simplicity  nd directness in the administration of justice.' But to grant appeal here would not sustain appeals from every adverse ruling made in the process of a trial. Denial of trial by jury is not to be classified with ordinary trial errors, such as an admission or rejection of evidence. The question here relates to the whole trial of the issues involved, what tribunal shall hear and resolve the evidence, judge or jury? And neither simplicity nor directness of judicial administration are necessarily furthered by compelling two trials where one would suffice. Moreover, there is much to be said against the idea of inflexibly barring appeals in regard to alleged substantial errors that may fatally invalidate an entire trial procedure. 

In considering whether the dogma against 'piecemeal appeals' is to be unduly exalted in this case we should not lose sight of the fact that the Bill of Rights guarantees trial by jury in appropriate cases. Had petitioner here filed a common-law suit on its policy in a state court it would have been entitled to trial by jury. In that event the federal court could have restrained trial, if at all, only by an injunction, which confessedly would have been appealable under § 129. But under Federal Rules of Civil Procedure 2 and 13(a) petitioner was compelled to sue on its policy by filing counterclaim in federal court. Cf. American Mills Co. v. American Surety Co., 260 U.S. 360, 364, 366, 43 S.Ct. 149, 151, 67 L.Ed. 306. Because of that federal compulsion the Court now penalizes petitioner by denying it a right of appeal. As a result, petitioner's alleged constitutional right to have the facts of its case determined by a jury is at least postponed. There are many prior decisions of this Court that justify a more considerate treatment of contentions that invoke the Bill of Rights guarantee of trial by jury. See, e.g., Scott v. Neely, 140 U.S. 106, 109, 110, 11 S.Ct. 712, 713, 714, 35 L.Ed. 358; Phoenix Mutual Life Ins. Co. v. Bailey, 13 Wall. 616, 20 L.Ed. 501. 

Notes