Planters Manufacturing Co. v. Protection Mut. Ins. Co.

• Decision Date: 06 November 1967
• Docket Number: No. 23019.,23019.
• Citation: 380 F.2d 869
• Parties: PLANTERS MANUFACTURING COMPANY, Appellant, v. PROTECTION MUTUAL INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

380 F.2d 869 (1967)

PLANTERS MANUFACTURING COMPANY, Appellant, v. PROTECTION MUTUAL INSURANCE COMPANY, Appellee.

No. 23019.

United States Court of Appeals Fifth Circuit.

May 26, 1967.

Certiorari Denied November 6, 1967.

Roy D. Campbell, Jr., Greenville, Miss., William H. Maynard, George F. Maynard, Jr., Clarksdale, Miss., for appellant, Maynard, Fitzgerald & Maynard, Clarksdale, Miss., Keady, Campbell & DeLong, Greenville, Miss., of counsel.

William O. Luckett, Clarksdale, Miss., Harding A. Orren, Minneapolis, Minn., for appellee, Brewer, Brewer & Luckett, Clarksdale, Miss., Robins, Davis & Lyons, Minneapolis, Minn., of counsel.

Before TUTTLE, Chief Judge, and THORNBERRY and GOLDBERG, Circuit Judges.

Certiorari Denied November 6, 1967. See 88 S.Ct. 293.

TUTTLE, Chief Judge:

The ultimate dispute here is whether plaintiff's soybean storage warehouse was damaged by a bean dust explosion (in which case defendant would be liable for the damage under a contract of insurance), or by a structural failure resulting from inadequate design, overloading, or a combination of both (risks not covered by the policy). Invoking the diversity jurisdiction of the United States District Court for the Northern District of Mississippi, plaintiff sought a judicial determination of this controversy. A jury resolved the dispute in plaintiff's favor. The trial judge, concluding that the evidence presented was inadequate to support the jury's verdict, granted the defendant's motion for judgment non obstante veredicto. Plaintiff appeals, contending that its right to a jury determination of disputed fact issues, secured by the seventh amendment to the Constitution of the United States, has been abridged by the trial judge's ruling.

I.

The first point urged by appellant is that in determining the sufficiency of the evidence to raise a question of fact for the jury in diversity cases, federal courts must apply a federal test. The Supreme Court has yet to settle the conflict which exists among the courts of appeals on this issue.¹

However, the Court's decisions in Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), and Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963), strongly suggest that the question will eventually be resolved in favor of the federal test. In Byrd, the issue was whether a federal court sitting in diversity was bound under the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (1938), to follow a decision by the Supreme Court of South Carolina which, in state court, would have made the trial judge the trier of fact on the question whether Byrd was covered by workmen's compensation. The Court refused to permit state law to divest a federal jury of its normal function. In the course of the opinion, it said:

"Thus the inquiry here is whether the federal policy favoring jury decisions of disputed fact questions should yield to the state rule in the interest of furthering the objective that the litigation should not come out one way in the federal court and another way in the state court.

"We think that in the circumstances of this case the federal court should not follow the state rule. It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts." Byrd, supra, 365 U.S. at 538, 78 S.Ct. at 901. (Emphasis added.)

To permit state law to dictate when a federal trial judge must take questions of fact from a jury by means of a directed verdict or a judgment n. o. v. seems hardly less disruptive of the federal judge — jury relationship than assigning the task of resolving factual disputes to the trial judge initially.

The question posed in Simler, another diversity case, was whether federal or state law would determine if a controversy was equitable in nature and triable to the court, or legal and triable to a jury. The Court said:

"The right to a jury trial in the federal courts is to be determined as a matter of federal law in diversity as well as other actions. * * * Only through a holding that the jury-trial right is to be determined according to federal law can the uniformity in its exercise which is demanded by the Seventh Amendment be achieved." Id, 372 U.S. at 222, 83 S.Ct. at 610.

If the seventh amendment requires uniformity in the exercise of the jury trial right in the federal courts, surely that subsumes uniformity in the exercise of the power to direct a verdict or grant a judgment n. o. v.

In any event, this court's position on the question is clear. In Revlon, Inc. v. Buchanan, 271 F.2d 795 (5 Cir. 1959), for example, we said:

"The quantity and quality of proof necessary to make out a case for submission to a jury in a federal court are determined by the Seventh Amendment to the Constitution of the United States, the Federal Rules of Civil Procedure and the decisions of the courts of the United States." Id. at 800.²

Careful examination of the principles involved has given us no cause to doubt the correctness of that position. We adhere to it.

II.

One further preliminary issue remains. Appellant contends that in formulating the federal standard to be applied in determining whether the evidence in a case is sufficient to raise a question for the jury, consideration must be given to the decision in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740 (1946), in which the Supreme Court circumscribed the power of federal judges to dispense with a jury in resolving disputed questions of fact.

A. Lavender was an action commenced under the Federal Employers Liability Act to recover damages for the death of Haney, a switchtender employed by the Illinois Central Railroad Company. Haney was found unconscious on the ground north of the railroad track, near his switch. He had been struck in the back of the head, causing a fractured skull from which he died. Lavender, the administrator of Haney's estate brought suit against the Illinois Central and the trustees of the St. Louis-San Francisco Railway Company (Frisco). The theory asserted by the plaintiff was that Haney had been struck by the curled end or top of a mail hook extended from the outside of the mail car of a Frisco train which was backing into the station at the time along the track near which Haney was found. There were no eyewitnesses to the occurrence. It was not shown that the hook was in fact extended at the time and place of Haney's injury, and it was demonstrated that, except for a topographic elevation at one place along the track, the hook, even if extended, was too high to have struck Haney standing on the ground. The position of Haney's body when discovered appeared to contradict plaintiff's theory of causation. The defense contended, first, that plaintiff's theory was practically a physical impossibility, and second, that Haney was probably murdered. Haney's wallet, containing no money, was found six days after and about a block from the place of the injury. The examining doctor who testified that the fatal blow might have come from an object attached to a moving train also admitted that the fracture might have resulted from a blow from a pipe or club wielded by an individual. It appeared that many hoboes and tramps frequented the area at night in order to get rides on freight trains, and it was shown that Haney carried a pistol to protect himself, which was found loose under his body by those who discovered him. The jury returned a verdict for the plaintiff, which was overturned by the Supreme Court of Missouri on appeal. On writ of certiorari, the Supreme Court of the United States reversed, holding that the case was properly submitted to the jury, and that it could reasonably be inferred from the plaintiff's evidence that death was caused by the mail hook.³

In its opinion, the Court elaborated thus upon the standard to be employed in determining whether the evidence in a case raises a question for the jury:

"It is true that there is evidence tending to show that it was physically and mathematically impossible for the hook to strike Haney. And there are facts from which it might reasonably be inferred that Haney was murdered. But such evidence has become irrelevant upon appeal, there being a reasonable basis in the record for inferring that the hook struck Haney. * * * It is no answer to say that the jury\'s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fairminded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a re-reversible error appear. But where, as here, there is an evidentiary basis for the jury\'s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court\'s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable." Id. at 652-653, 66 S.Ct. at 743-744. (Emphasis added.)

We find it impossible to reconcile this rule with the language employed by the Court in Pennsylvania R. R. v. Chamberlin, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819 (1932), and relied upon by the district court in this case:

"We, therefore, have a case belonging to that class of cases where proven facts give equal support to each of two inconsistent inferences; in which event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover." Id. at 339,⁴ 53 S.Ct. at 393.

The consequence of heeding the teachings of Lavender...