Bunch v. Walter, 81-4236

• Citation: 673 F.2d 127
• Decision Date: 16 April 1982
• Docket Number: No. 81-4236,81-4236
• Parties: Patrick O'Brian BUNCH, Jr., A Minor By and Through His Mother, Natural Guardian and Next Friend, Brenda Bunch, Plaintiff-Appellant, v. James Harvey WALTER, Defendant-Appellee. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 127

673 F.2d 127

Patrick O'Brian BUNCH, Jr., A Minor By and Through His Mother, Natural Guardian and Next Friend, Brenda Bunch, Plaintiff-Appellant, v. James Harvey WALTER, Defendant-Appellee.

No. 81-4236

Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 16, 1982.

Floyd J. Logan, Gulfport, Miss., for plaintiff-appellant.

Grier J. Gregory, Gulfport, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN, POLITZ and WILLIAMS, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This diversity case arises out of an automobile intersection accident in which a pickup truck driven by Plaintiff Bunch was hit by a car driven by Defendant Walter. The jury returned a verdict in favor of Walter. Finding that there is sufficient evidence to support the verdict and that the District Court did not err in its instructions, we affirm.

I.

The accident forming the basis of this lawsuit occurred at the intersection of U. S. Highway 90 and State Highway 603. Bunch was traveling east on U. S. 90, and as he approached the intersection, entered a turning lane and slowed his vehicle in preparation for making a left turn through the intersection. Walter, towing a 30-foot travel trailer, was traveling at approximately 45 miles per hour in the opposite direction, in the northern most lane (the slow west-bound lane of the highway). While both parties had a green light, Bunch proceeded to make a left turn onto State Highway 603 and was struck broadside by the Walter car. As a result of the accident, Bunch was seriously injured and through his mother brought this action against Walter for damages.

There were four eyewitnesses to the accident, three of whom testified at the trial. The fourth witness, Bunch, due to his injuries and resultant amnesia, had no recollection of the accident. Defendant Walter testified that he observed the Bunch truck on three separate occasions prior to the collision: (1) when both vehicles were approximately one block from the intersection; (2) when the Bunch pickup was approximately 100 feet west of the intersection and slowing down; and (3) when the two vehicles were approximately 20 to 25 feet apart and Bunch abruptly turned into the intersection crossing in front of the Walter vehicle. Oren Seal, a third party, testified to seeing the Bunch vehicle slow down prior to the accident, but he diverted his attention momentarily and did not observe the actual impact. Both Seal and Walter stated they observed the use of no turn signal by the Bunch pickup. Walter's wife, a passenger in the defendant's car at the time, also testified. Evidence was also presented by two doctors concerning the nature of Bunch's injuries and by Bunch's parents and a former employer concerning the change in Bunch's personality following the accident. The jury returned a general verdict in favor of Walter. After denial of a motion for new trial, Bunch appeals contending that (1) the verdict is contrary to the law and evidence; (2) the District Court erred in instructing the jury on Bunch's burden of proof; and (3) the District Court should not have allowed an instruction on unfavorable inferences from failure to call certain of Bunch's doctors to testify. ¹

II.

Bunch asserts that the jury's verdict is contrary to both the law and the evidence in that Walter failed to yield the right-of-way, maintain a proper lookout, or decrease his speed when approaching an intersection. ² In particular, Bunch points to Walter's acknowledgement that he saw and determined that the Bunch vehicle was making a left turn at least 100 feet prior to the intersection and then diverted his attention for approximately the next 80 feet of travel. Walter made no attempt to divert his vehicle, sound his horn, or take any other action to prevent the collision. Walter, in turn argues that he did not expect Bunch to turn immediately in front of his vehicle and that Bunch failed to comply with Section 63-3-803 of the Mississippi Code which requires:

The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereof as to constitute an immediate hazard. However, said driver having so yielded and having given a signal when and as required by Article 15, may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn.

Both this Court and the Mississippi Supreme Court have held that in intersection accident cases the issue of negligence is properly a determination for the jury. See, e.g., Williams v. Slade, 431 F.2d 605 (5th Cir. 1970); Williams v. Weeks, 268 So.2d 340 (Miss.1972); Bush Construction Co. v. Walters, 254 Miss. 266, 179 So.2d 188 (1965); Massengale v. Taylor, 246 Miss. 521, 150 So.2d 859 (1963). On several occasions the Mississippi Supreme Court has also reversed the granting of peremptory instructions by trial courts as to liability in intersection cases. See, e.g., Jobron v. Whatley, 250 Miss. 792, 168 So.2d 279 (1964); Meaut v. Langlinais, 240 Miss. 242, 126 So.2d 866 (1961). In this case it was for the jury to determine who was at fault, whether either party was not paying proper attention, and which party had the duty to yield to the other.

While Mississippi law governs the issues of liability in this diversity case, determination of sufficiency of evidence is controlled by the federal standard. The nature of that review is dependent on whether a motion for directed verdict was made at the District Court level. While Bunch contends that the jury's verdict is contrary to the law and evidence, our review of the record reveals no motion by Bunch for directed verdict or for judgment notwithstanding the verdict. Bunch's motion for new trial contains no mention of a motion for directed verdict but asks that judgment be set aside as contrary to the law and evidence. ³ The only reference to a motion for directed verdict is found in Bunch's "Designation of Contents of Record and Statement of Points," filed for purposes of appeal to this Court, in which Bunch lists as an issue for appeal the District Court's "failure to grant" a directed verdict.

When no motion for directed verdict is made in the District Court, our appellate review is limited to "whether there was any evidence to support the jury's verdict, irrespective of its sufficiency or whether plain error was committed which, if not noticed, would result in a 'manifest miscarriage of justice.' " Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir. 1978), quoting American Lease Plans, Inc. v. Houghton Construction Co., 492 F.2d 34, 35 (5th Cir. 1974) and Little v. Bankers Life & Casualty Co., 426 F.2d 509, 511 (5th Cir. 1970). ⁴ As the late Judge Ainsworth explained in Bankers Life :

In this Circuit it is well established that the sufficiency of the evidence supporting jury submission of a case or the jury's findings is not reviewable on appeal unless the party seeking review has made a motion for a directed verdict in the trial court.... The reasons behind the rule are sound. For example, a litigant may not gamble on the jury's verdict and then later question the sufficiency of the evidence on appeal.... Similarly, the litigant who has not moved for a directed verdict in the trial court must have been of the view that the evidence made a case for the jury; he should not be permitted on appeal to impute error to the trial judge for sharing that view....

Since Little did not move for a directed verdict in the District Court, our review of the sufficiency of the evidence ... is consequently foreclosed. We may inquire whether there was any evidence supporting the submission of the suicide issue and the jury's finding that Mrs. Little's death was a suicide, but we may not question the sufficiency of whatever evidence we do find.... Our consideration is limited to whether plain error has been committed which, if not noticed, would result in a manifest miscarriage of justice.... No further may we delve.

426 F.2d at 510-11 (citations omitted; emphasis in original).

While a motion for directed verdict is not a prerequisite for new trial, Urti v. Transport Commercial Corp., 479 F.2d 766 (5th Cir. 1973) and cases cited in Coughlin, supra, at 297 n.12, the burden on a plaintiff is considerably greater when no motion for directed verdict has been made, requiring a complete absence of evidence. See Scheib v. Williams-McWilliams Co., 628 F.2d 509, 512 (5th Cir. 1980) (describing this burden as "Draconian"). As to the denial of a motion for new trial, absent a clear showing of abuse of discretion, we will not disturb the District Court's action.

From the record it is clear that there was ample evidence, not merely "any", to support the jury's verdict. Nor can we say, based on sufficiency of evidence, that the District Court abused its discretion in denying the motion for new trial. ⁵

III.

Bunch asserts that the District Court in repeating many times the plaintiff's burden of proof erred. The crux of this contention is that the repetition of the plaintiff's burden of proof created confusion and in effect changed the burden from "preponderance of the evidence" to "beyond a reasonable doubt". In reviewing instructions to a jury, we consider the charge as a whole. Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1372 (5th Cir. 1981); Byrd v. Hunt Tool Shipyards, Inc., 650 F.2d 44, 47 (5th Cir. 1981); Kramer v. Keys, 643 F.2d 382, 384 (5th Cir. 1981). "In the review of jury instructions, a challenged instruction should not be considered in isolation but rather as part of an integrated whole. If, viewed in that light, the jury instructions are comprehensive, balanced, fundamentally accurate and not likely to confuse or mislead the...