Sam Tomlin v. Pope & Talbot, Inc.

This is an action to recover damages for personal injuries. Jurisdiction in the district court rests upon diversity of citizenship. The defense was that the claim was barred by virtue of the execution of a release subsequent to the injury. Plaintiff asserted that the execution of the release is invalid because it was induced by false representations on the part of defendant’s agent. The issue of the validity of the release was set down for trial as a segregated issue. The issue was tried to the court and resulted in the entry of a decree upholding the release and therefore dismissing the action.

Appealing to this court, plaintiff contends that the trial court erred in failing to grant a jury trial on the issue of the validity of the release executed by plaintiff.

No demand for a jury trial was made within ten days after the service of the last pleading directed to the issue concerning the validity of the release. The failure to make such a demand within the time indicated constituted a waiver by plaintiff of trial by jury. Rule 38 (b), (d), Federal Rules of Civil Procedure, 28 U.S.C.A.; Moore v. United States, 5 Cir., 196 F.2d 906 .

It is provided in Rule 39(b), Federal Rules…