Capital Transp. Co. v. Compton

• Decision Date: 12 March 1951
• Docket Number: No. 14199.,14199.
• Citation: 187 F.2d 844
• Parties: CAPITAL TRANSP. CO. v. COMPTON.
• Court: U.S. Court of Appeals — Eighth Circuit

187 F.2d 844 (1951)

CAPITAL TRANSP. CO. v. COMPTON.

No. 14199.

United States Court of Appeals, Eighth Circuit.

March 12, 1951.

Thomas C. Trimble, Jr., Little Rock, Ark. (House, Moses & Holmes and Edward B. Dillon, Jr., Little Rock, Ark., on the brief), for appellant.

James T. Gooch, Little Rock, Ark. (L. A. Hardin, Little Rock, Ark., on the brief), for appellee.

Before SANBORN, JOHNSEN and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

This is an appeal from a judgment for the plaintiff entered on a jury verdict in an action by the administrator of the estate of O. C. Compton, deceased, against the Capital Transportation Company, operating the public transportation system in Little Rock, Arkansas. The complaint in two counts, 3 Ark.Stats.1947, §§ 27-903 and 27-904, sought recovery (1) for the benefit of Compton's estate, and (2) for the benefit of Cassie Compton, his surviving widow, alleging that Compton's death was the result of injuries received in a collision, caused by the negligence of appellant, between an automobile in which Compton was a passenger and a bus operated by the transportation company.

In its answer the transportation company denied the charges of negligence; alleged that at the time of the collision Compton and others in the automobile "were on a joint venture and on their way for the personal pleasure of all of the said persons to some point West of the place where the collision took place," that the collision was the result of the negligence of the driver of the automobile, and that by reason of the joint venture in which the occupants of the automobile were engaged the negligence of the driver of the automobile was imputable to Compton barring recovery.

The jury returned a verdict for $4,500 for the benefit of Compton's estate and a verdict of $17,000 for the benefit of Cassie Compton, the surviving widow. Within due time after the reception of the verdict and the entry of judgment, appellant moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, assigning errors now relied on for reversal. The court sustained the contention as to the excessiveness of the verdict for the benefit of the widow and ordered a remittitur of $7,000 which the plaintiff below promptly accepted.

On its appeal the transportation company challenges the sufficiency of the evidence to establish the negligence of the bus operator, or to show that this negligence, if established, was the proximate cause of Compton's death which occurred on the day following the accident. Error is also assigned in the refusal of the court to charge the jury as requested by appellant and in the charge as given by the court. The verdicts of the jury are again challenged as excessive and the result of passion and prejudice.

This record presents the question whether appellant has preserved for review the sufficiency of the evidence to take the case to the jury upon the question of liability of appellant, or any of its assignments of error in the court's refusal to charge the jury as requested by appellant or in the court's charge as given. At the conclusion of appellee's evidence appellant moved for a directed verdict on the grounds that the evidence failed to establish the proximate cause of Compton's death or the negligence of appellant, that it did establish the negligence of the driver of the car, and that the driver of the car, Compton, and the other passengers were engaged upon a joint venture or joint enterprise, with the result that Compton was chargeable with the negligence of the driver and hence the appellee could not recover on either count of the complaint. The motion was denied. Whatever the merit of these contentions at this stage of the trial, the motion was waived since the appellant proceeded to introduce its evidence. Boston Insurance Co. v. Fisher, 8 Cir., 185 F.2d 977.

The record also shows that during the course of the trial both parties presented to the trial judge numerous requests in the form of instructions to the jury. Appellant presented 22 separately numbered requests.¹ Request No. 1 directed the jury to return a verdict in its favor. Requests Nos. 8, 9, 10, and 11 were based on appellant's contention that the occupants of the automobile were engaged in a joint venture at the time of the collision. These requests defined joint venture and imputed negligence, and directed the jury to return a verdict for appellant if they found from the evidence that the occupants of the car were engaged on a joint venture at the time of the accident and that the driver of the car was guilty of negligence which contributed in any manner to cause the collision or Compton's injury. These requests were definitely refused. Requests Nos. 12, 17, 21, and 22 were refused without discussion of the grounds for them and without objection of appellant.

Appellant's other requests were approved in substance, but refused, the judge advising counsel that he would charge the jury in his own language. Except on the issue of joint venture appellant never objected to any of the court's rulings, tentative or final. On inquiry from appellant's counsel as to whether the burden was on him "to find out the difference between what I asked and what you give," counsel was advised that the charge would be given after the arguments of counsel to the jury, that the substance of the charge would not be finally determined until delivered, that the judge reserved the right to change any of his rulings after completion of the arguments to the jury, and that counsel would be given an opportunity to present his objections to the charge as given before the jury retired. But counsel for appellant was asked to state his objections to the charge as it was then understood. Counsel replied, "We still want to press our position as to the joint venture proposition."

In its charge the court submitted to the jury the questions of proximate cause, of negligence of the bus driver, and of contributory negligence of Compton.² The jury were told that the evidence was insufficient to show that the passengers in the automobile were engaged upon a joint venture or joint enterprise. At the conclusion of the charge counsel for both parties were requested to state their objections. Counsel for appellant offered one criticism on a point not involved in this appeal which the court granted. No other objection to the charge as given was offered by either party.

Rule 50 of the Federal Rules of Civil Procedure, 28 U.S.C.A., requires that a motion for a directed verdict must state the specific grounds therefor. Appellant's Request No. 1 for a directed verdict at the close of the evidence does not comply with Rule 50. The record merely shows that at some time during the trial this request was handed to the judge, that at the conclusion of the evidence it was denied without argument, discussion, or objection, and that no grounds were assigned for it. Rule 50 was in effect in the Eighth Circuit long before the adoption of the Rules of Civil Procedure. In Mansfield Hardwood Lumber Co. v. Horton, 8 Cir., 32 F.2d 851, 852-853, it is said: "For many years this court has laid down the rule that the question whether there was any substantial evidence to support a judgment for the opposite party can be raised, so as to be reviewable, only by a motion, request for a ruling, request for a declaration of law, or other equivalent action, at the close of the evidence; that such motion, request, or other equivalent action must be based upon a specific ground or grounds stated in apt words and brought sharply to the attention of the court * * *. A general motion stating no grounds is not sufficient."

Rule 51 of the Rules of Civil Procedure provides that no party may assign as error the giving or failure to give an instruction, unless he objects thereto before the jury retires to consider their verdict, stating distinctly the matter to which he objects and the grounds of his objection. The latest decision of this court on Rules 50 and 51 is Boston Insurance Company v. Fisher, supra.

From the foregoing it seems too clear for argument that we are not at liberty to consider the sufficiency of the evidence on the questions of negligence of the bus driver, contributory negligence of Compton, and proximate cause, nor appellant's assignments of error in the charge to the jury as given by the court. Nor has appellant preserved for review the...