Sinclair Refining Co. v. Stevens (123 F.2d 186, 1941)

WOODROUGH, Circuit Judge.

This appeal is taken by the Sinclair Refining Company to reverse a judgment rendered against it upon the verdict of the jury in an action brought by Mr. and Mrs. Stevens to recover for damages to their property by fire resulting from the company’s alleged negligence. The action was brought in the state court and was duly removed to the federal court. We will refer to the Stevenses as plaintiffs and to the company as defendant.

The defendant has not brought up the testimony given on the trial but has presented only that it was and is entitled to judgment in its favor on the pleadings. It moved for judgment on the pleadings shortly after the pleadings were made up and the motion was denied. It moved for a directed verdict on the same ground at the conclusion of the evidence and also moved on the same ground for judgment notwithstanding the verdict, both motions being denied.

It is argued for the plaintiffs that under the Missouri law the defendant “waived any objection to the pleadings by going to trial” but Rule 12(c) of the Rules of Civil Procedure for the District Courts of the United States, 28 U.S.C.A. following section 723c, expressly