708 F.2d 639 (11th Cir. 1983), 82-7227, Neff v. Kehoe

Docket Nº:82-7227
Citation:708 F.2d 639
Party Name:Ben NEFF, Plaintiff-Appellant, v. Nell Bilbro KEHOE, et al., Defendants-Appellees.
Case Date:June 30, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 639

708 F.2d 639 (11th Cir. 1983)

Ben NEFF, Plaintiff-Appellant,


Nell Bilbro KEHOE, et al., Defendants-Appellees.

No. 82-7227

United States Court of Appeals, Eleventh Circuit

June 30, 1983

Page 640

Burns, Shumaker & Davis, Thomas E. Davis, Gadsden, Ala., for plaintiff-appellant.

Inzer, Suttle, Swann & Stivender, James C. Stivender, Roger C. Suttle, Gadsden, Ala., for defendants-appellees.

Page 641

Appeal from the United States District Court for the Northern District of Alabama.

Before RONEY, VANCE and ANDERSON, Circuit Judges.


This diversity action was instituted by Ben Neff against Nell Bilbro Kehoe as a result of misrepresentations allegedly made in connection with the sale of a coin collection. Neff argues that representations made by Kehoe were knowingly false or that Kehoe recklessly represented facts that were in fact false. In addition to claiming damages based on fraud, Neff alleged a right to recover based on breach of warranty as to the genuine character of the coins.

Neff, a resident of Texas, first learned in 1980 that Kehoe, a resident of Alabama, might be interested in selling her coin collection. Neff confirmed by telephone that the collection might be for sale. Neff requested and received a general description of each coin in the collection. Neff testified that during this conversation Kehoe stated that one coin, a 1907 Roman Numeral Twenty Dollar gold piece, was similar to a coin which the newspaper column "Ripley's Believe It or Not" had reported as having been sold at a 1974 New York City auction for $200,000. Following the conversation, Neff purchased several coin collector's magazines and contacted expert numismatists in New York City, Houston and New Orleans in an effort to obtain information and advice about the value of coins in the Kehoe collection.

Neff traveled to the Kehoe residence in Alabama and examined the coins. After his return to Texas, Neff, by telephone, offered to pay $64,000 for the collection. Kehoe stated that she felt the collection was worth more and should be valued at between $75,000 and $100,000. Neff increased his offer to $74,000 and Kehoe accepted. Neff again traveled to Alabama, paid the $74,000 by two cashier's checks and received the collection.

Upon returning to Texas, Neff had the coins examined by the United States Department of the Treasury. The Department informed Neff by letter that two of the coins, including the Roman Numeral, were counterfeit. Neff filed this action in federal district court. At the conclusion of the evidence by both sides, the district court directed a verdict for defendant Kehoe as to all issues in the case.

Although this is a diversity case, the propriety of the directed verdict is governed by federal law. New England Merchants' National Bank v. Rosenfield, 679 F.2d 467, 473 (5th Cir.1982) (Unit B); King v. Ford Motor Co., 597 F.2d 436, 439 (5th Cir.1979). Because a directed verdict decides contested substantive issues as matters of law, the same standard of review is applied by this court as by the district court. J & H Auto Trim Co. v. Bellefonte Insurance Co., 677 F.2d 1365, 1368 (11th Cir.1982). In determining whether a party's evidence is sufficient to withstand a directed verdict motion, the court must apply the principles articulated in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969), made binding on this court in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc). Courts view all the evidence, together with all logical inferences flowing from the evidence, in the light most favorable to the non-moving party:

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions,

Page 642

the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Boeing, 411 F.2d at 374-75. Accord Kaye v. Pawnee Construction Co., 680 F.2d 1360, 1364 (11th Cir.1982); Maxey v. Freightliner Corp., 665 F.2d 1367, 1371 (5th Cir.1982) (en banc). Applying the Boeing standard to the present case, we reverse the directed verdict on both the fraud claim and the breach of warranty claim.



While the directed verdict standard is drawn from federal law, Alabama law governs the merits of the fraud and breach of warranty claims in this diversity case. In International Resorts, Inc. v. Lambert, 350 So.2d 391, 394 (Ala.1977), the Alabama Supreme Court delineated the elements...

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