Bayamon Thom McAn, Inc. v. Miranda, 7104

Decision Date22 April 1969
Docket Number7105.,No. 7104,7104
Citation409 F.2d 968
PartiesBAYAMON THOM McAN, INC., et al., Defendants, Appellants, v. Eileen Josefina MIRANDA et al., Plaintiffs, Appellees. KIDDIELANE FLORIDA CORPORATION, Defendant, Appellant, v. Eileen Josefina MIRANDA et al., Plaintiffs, Appellees.
CourtU.S. Court of Appeals — First Circuit

William Estrella, San Juan, P. R., with whom Beverley, Rodriguez, Estrella & Pesquera, San Juan, P. R., was on brief, for appellants in No. 7104.

Antonio M. Bird, San Juan, P. R., for appellant in No. 7105.

Harvey B. Nachman, San Juan, P. R., with whom Salvador Antonetti Zequeira and Nachman, Feldstein, Laffitte & Smith, San Juan, P. R., were on brief, for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

These are appeals from judgments on plaintiffs' verdicts in a negligence action in the district of Puerto Rico, with jurisdiction being based on 48 U.S.C. § 863, all of the defendant corporations being non-domiciliaries of Puerto Rico. The minor plaintiff, Eileen Josefina Miranda Skerret, recovered $100,000 from defendants-appellants for damages resulting from a fall from a hobbyhorse in 1963, when she was a fifteen month old infant. Her parents recovered damages of $30,000. The horse is owned by defendant-appellant Kiddielane Florida Corporation (Kiddielane), and was installed in defendant-appellant Bayamon Thom McAn, Inc.'s (Bayamon) store pursuant to a lease agreement between defendant Melville Shoe Corporation (Melville) and Kiddielane. Bayamon, a New York corporation, and subsidiary of Melville, operates a shoe store in Bayamon, Puerto Rico.

Taking the evidence most favorable to plaintiffs, the facts are as follows. On June 1, 1963, the minor plaintiff, accompanied by her mother, another child, and two adult neighbors, entered the Bayamon shoe store. The minor plaintiff's mother was looking for tennis shoes for her daughter. A salesman took her order. The minor plaintiff then asked her mother to give her a ride on a hobbyhorse installed in the children's department of the store. The other child, two years and two months old, also asked for a ride.

The mother placed both infants in the saddle at the same time. The other child sat in the front of the saddle, holding the reins while the minor plaintiff sat in the rear of the saddle, with her hands around the other child's waist. The mother placed a coin in a slot in the horse and it commenced to operate. She demonstrated to the jury the position she and the girls were in, saying, "Well, what I was holding, like this, my girl was here and I was holding like this next to them at all times, right beside them * * * she was sitting here and I was touching her leg and a portion of the horse, right here next to the horse."

While the girls were riding the horse, the salesman returned from behind the mother and said, "Lady, here are the shoes you asked for." The mother testified "* * * I turned toward the back to my left, swinging from my left" and that in turning she "must have" removed her hands from the horse, apparently demonstrating to the jury during cross-examination how she turned. The salesman then shouted, "Watch-out, the girls are falling." Both children then fell to the floor. She picked up her daughter, then unconscious, and left the store shortly thereafter. The girl was later taken to a hospital; surgery was performed; she is now mentally retarded.

Plaintiffs alleged specifically that defendants acted negligently in failing to post signs or warnings as to the operation of the device, in failing to have straps or seat belts with which to secure the safety of infants, in failing to place rugs or cushions about the device in view of the fact that the horse was on a hard terrazzo floor, and in "interrupting and distracting" the mother while supervising her child on the device.1

While a dozen issues have been briefed and argued, we find it necessary to deal extensively with only the issue of the propriety of the district court's action in denying motions for judgment notwithstanding the verdicts. Appellees advance the contention that appellants failed to preserve the issue by moving for a directed verdict at the close of all the evidence in accordance with Fed.R. Civ.P. 50(a).

The procedural background is the following. Before the plaintiffs rested, the court stated that it anticipated motions for a directed verdict at the end of the testimony, but added that "I do believe that there is sufficient in evidence now that I am going to let a jury look at it with the reserved ruling on your motions for a directed verdict, so you might as well prepare along that line, that I will let the matter go to the jury." Counsel for one of the defendants then asked "* * * with respect to a motion I was going to present for a directed verdict, as it stands, it will be considered that I did file my motion?" The court responded "No" and elaborated "* * * I will take a recess after the liability * * * where you gentlemen can properly make your motions and you can do that, of course, after the testimony is in and everything else. You will have a time in which you can properly present your motions."

After plaintiffs rested, motions for a directed verdict were filed on behalf of all defendants. To a question inquiring if they had been granted or not, the court replied, "No. However, I have not denied it. I am following the usual federal practice of reserving ruling on it; if the verdict is against you, you can still argue it anyway."

Thereupon counsel for two defendants submitted eight exhibits which had been identified in the pre-trial order — none having to do with the issues of negligence of the defendants or contributory negligence of the mother.2 He then read to the jury a brief portion of a deposition given by the mother in which she had said she had told her husband "I let the girl fall". This counsel then rested. Counsel for the remaining defendant then unsuccessfully sought the admission of a few other extracts from the deposition, and had the marshal operate the horse for the jury. He then said, "In view of the evidence submitted by the party plaintiff I decided to submit the case on the plaintiff's evidence." After a short recess, arguments to the jury commenced.

Six days after the verdicts were rendered, in discussing supplemental issues not now before us, the court concluded the hearing by saying, "All right, gentlemen, then in due course I will expect to receive a motion for judgment notwithstanding the verdict, and then I will rule on that in due course." Subsequently, after such motions were made, the court denied them on the merits, noting, in passing, that no motions for a directed verdict had been made at the close of all the evidence and that possibly the motions were not proper.

We are well aware of the stringent rule — that when a defendant, after moving for a directed verdict at the end of the plaintiff's case, fails to renew his motion at the close of all the evidence, he is deemed, as the cases say, to have waived his right to move for judgment notwithstanding the verdict. Home Ins. Co. of N. Y. v. Davila, 212 F.2d 731 (1st Cir. 1954). While the purpose of the required motion at the end of all the evidence is to give the trial court the opportunity to reflect on the applicability of the law to the total case, procedural wrangles would multiply if the requirement could be deemed nonessential upon a mere showing of a court's continuing disinclination to grant such a motion. A rigorous adherence to the requirement, not difficult to know or to comply with, is sensible and in accord with the objectives of Rule 50.

In this case, however, there would seem to be ample reason for holding that appellants had preserved the right to move for judgment notwithstanding the verdicts. In the first place, the court itself not only expected motions for a directed verdict but preliminarily indicated its disposition to let the case go to the jury and instructed counsel to plan accordingly. The court further indicated that counsel would have a time for the proper presentation of the motions and that, if verdicts issued against defendants, they could still argue the question.

Technically the court was in error in expressly reserving its ruling. Its ruling, had there been no further evidence, would have been reserved by operation of Rule 50 itself; on the other hand, its reservation of its ruling on the threshold of the presentation by the defense was an idle gesture. As Judge Magruder observed in his separate opinion in Stevens v. G. L. Rugo & Sons, Inc., 209 F.2d 135, 143 (1st Cir. 1954), the Rule 50(a) motion would have "expended itself" on the introduction of defense evidence. Consequently, in the present case, there would have been no issue pending for which judgment could be reserved. In a sense the court may well have led counsel reasonably to believe that all had been done that was necessary.

This factor alone would be of no avail to appellants had the evidence subsequently presented been previously unrevealed, lengthy, or relevant to the issues raised by the motions for a directed verdict. See, e. g., A. & N. Club v. Great American Ins. Co., 404 F.2d 100 (6th Cir. 1968). But this part of the trial, occupying only two pages of transcript and involving no more than a few minutes, held no surprises. The evidence, being taken from earlier identified exhibits and a deposition, did not bear on the question of defendants' negligence and contained one item directed at impeaching testimony which had been given by the mother. There is no possibility that any of this could have changed the court's mind in ruling on a repeated motion. The factual and procedural contexts were very similar to those in United...

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