Christensen v. Stuchlik

• Decision Date: 04 May 1967
• Docket Number: No. 9792,9792
• Parties: Erling O. CHRISTENSEN and Doris I. Christensen, husband and wife, Plaintiffs-Respondents, v. Howard E. STUCHLIK, d/b/a Harmony Cafe, Defendant-Appellant, and Jane Doe, Defendant.
• Court: Idaho Supreme Court

Page 278

427 P.2d 278

91 Idaho 504

Erling O. CHRISTENSEN and Doris I. Christensen, husband and wife, Plaintiffs-Respondents, v. Howard E. STUCHLIK, d/b/a Harmony Cafe, Defendant-Appellant, and Jane Doe, Defendant.

No. 9792.

Supreme Court of Idaho.

May 4, 1967.

Gigray, Boyd & Downen, Caldwell, for appellant.

Weeks & Davis, Nampa, for respondents.

McFADDEN, Justice.

Plaintiffs-respondents instituted this action for damages for personal injuries suffered by Mrs. Christensen while a patron in the cafe of defendant-appellant, Howard E. Stuchlik, the only defendant that was served. The case was tried by a jury, which returned a verdict of $2500.00 for respondents, upon which the judgment was entered. Appellant Stuchlik has appealed, challenging the sufficiency of the evidence.

A brief review of the facts essential for resolution of the appeal follows:

On August 19, 1962, at Nampa, the respondents were having their noon meal in appellant Stuchlik's Harmony Cafe. They had been served their meal and had started eating. Sandra Needs, an employee of Stuchlik who was working as a waitress in the cafe while the Christensens were dining, started to pass their table carrying several plates of dinners. Quite suddenly, Sandra Needs started to sink to the floor near Mr. Christensen, and the dishes she was carrying started to slip from her grasp toward the Christensens and their table. As the dishes started to slip, she cried out 'Help me!' Thus alerted, Mrs. Christensen arose from her chair, came around the corner of her table, and reached for some of the slipping dishes. She caught two of the falling plates and then slipped to the floor on her knees to the left of and behind her husband's chair, the resulting fall causing injuries to her back, for which she seeks damages.

Appellant has strenuously argued in support of his assignments of error, the insufficiency of the evidence to sustain the verdict, asserting there is no evidence of negligence on the part of Stuchlik or his employee; further, that if there is evidence of negligence, the record affirmatively shows that Mrs. Christensen was contributorily negligent, barring her recovery. We have carefully reviewed the record and cannot agree with appellant's contention; the judgment must be affirmed.

Suffice it to say that testimony reflecting that Sandra Needs was carrying too many dishes, and that Mrs. Christensen's action in leaving her seat was an instinctive or reflex action, is sufficient to present an issue for the jury to consider on the questions of appellant's negligence and absence of contributory negligence on the part of Mrs. Christensen. This court, on an appeal attacking the sufficiency of the evidence to sustain a finding of negligence and a finding against contributory negligence, views the record most favorably to sustain the jury verdict. Anderson v. Blackfoot Livestock Commission Co., 85 Idaho 64, 72, 375 P.2d 704, 708.

The judgment must also be affirmed because of a procedural deficiency. During the course of the trial and at the close of the respondent's case, appellant moved for a dismissal of the action on the ground that there was a failure of proof on the part of the respondents, in that there was no proof of negligence. The trial court denied this motion and appellant proceeded with the presentation of his evidence. At the close of the presentation of all evidence, no motion was made by appellant for a directed verdict. After the jury returned a verdict in favor of the respondents, appellant then moved for judgment notwithstanding the verdict. The trial court in its order denying the motion for judgment notwithstanding the verdict pointed out that no motion had been made for a directed verdict.

Appellant's first specification of error is that the evidence is insufficient to establish negligence on his part; the second specification of error is that the court erred in denying appellant's motion to dismiss at the close of respondent's case which motion was based on the claimed insuficiency of the evidence to establish negligence; the third assignment of error is that the respondent, Mrs. Christensen, was guilty of contributory negligence as a matter of law.

Concerning the second specification of error, in a jury case a motion for involuntary dismissal under IRCP 41(b) made at the close of the plaintiff's case is indistinguishable in operation and effect from a motion for a directed verdict under IRCP 50(a). Eckman v. Jones, 85 Idaho 10, 13, 375 P.2d 180 (1962), quoting from 2B Barron & Holtzoff, Federal Practice and Procedure, Rules Edition, Civil § 919, p. 146; ¹ This court has held that if a defendant, after denial of his motion for dismissal or for directed verdict made at the close of the plaintiff's case, introduces evidence in support of his case, he thereby waives his right to assign error as to the denial of such motion unless such motion is renewed at the close of all the evidence. Eckman v. Jones, 85 Idaho 10, 375 P.2d 180; Smith v. Sharp, 85 Idaho 17, 375 P.2d 184. See also 2B Barron & Holtzoff, Federal Practice and Procedure, Rules Edition, Civil, § 1074; 5 Moore's Federal Practice, 2d ed. 50.05, p. 2340. Hence in the instant case, the appellant, after making his motion at the close of the respondent's case, by the introduction of evidence following the denial of this motion waived any right to assign as error the denial of such motion.

When appellant at the close of the presentation of all the evidence failed to renew his motion for a directed verdict under IRCP 50(a), the trial court was foreclosed from consideration of his later motion for judgment notwithstanding the verdict, because under the provisions of IRCP 50(b) it is prerequisite for consideration of a motion for judgment notwithstanding the verdict that a prior motion for directed verdict be made and denied. 5 Moore's Federal Practice, 2d ed. 50.08, p. 2357; 2B Barron & Holtzoff, Federal Practice and Procedure, Rules Edition § 1077, p. 406. This requirement is in conformity with the decisions of this court prior to adoption of the Idaho Rules of Civil Procedure in 1958. See: Hendrix v. City of Twin Falls, 54 Idaho 130, 29 P.2d 352; Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957.

The failure of the appellant here to present to the trial court a motion for directed verdict not only foreclosed the trial court from consideration of his motion for judgment notwithstanding the verdict, but under decisions interpreting the Federal Rules of Civil Procedure, such failure precludes the appellate court from reviewing the sufficiency of the evidence to sustain the verdict. 5 Moores Federal Practice, 50.05(1), p. 2343 states:

'From the beginning of the Federal Rules of Civil Procedure, the courts have been consistent in holding that the appellante court cannot review the sufficiency of the evidence in the absence of an unwaived motion for a directed verdict. Essentially, the reasons behind this position are two. The first is the general rule that an appellate court will not review issues on appeal that were not properly raised in the trial court. The second is that the function of the appellate court is to review actions of the trial court; it does not and cannot sit to review the actions of the jury itself. The latter proposition rests on a constitutional base that precludes the reconsideration of verdicts by an appellate tribunal.'

The cases cited under the foregoing quoted paragraph are legion. Representative of the opinions decided at the time Idaho adopted IRCP in 1958 are the following: Strickland v. Perry, 244 F.2d 24 (5th Cir., 1957); Rotondo v. Isthmian S. S. Co., 243 F.2d 581 (2nd Cir., 1957); Mahoney v. New York Central Railroad, 234 F.2d 923 (2nd Cir., 1956); Zimmerman v. Emmons, 225 F.2d 97 (9th Cir., 1955); Een v. Consolidated Freightways, 220 F.2d 82 (8th Cir., 1955); Traders & General Ins. Co. v. Shoemake, 199 F.2d 85 (10th Cir., 1952); Charles v. Norfolk & W. Ry., 188 F.2d 691 (7th Cir., 1951); Sturm v. Chicago & N. W. Ry., 157 F.2d 407 (8th Cir., 1946); Nailling v. United States, 124 F.2d 431 (6th Cir., 1941); Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350 (4th Cir., 1941). See also: 2B Barron & Holtzoff, Federal Practice and Procedure, Rules Edition, § 1081, p. 423; 4 C.J.S. Appeal and Error § 298 p. 925, § 300 p. 936. Cf. Cone v. West Virginia Pulp and Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947).

In addition to the federal cases which are consistent in following this prerequisite to appellate review of evidence presented in a jury case, two cases from state courts are worthy of consideration. The first of these cases is from the Supreme Court of Florida, being 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla., 1958). Florida had adopted rules of civil procedure comparable to the federal rules in 1954, Therein that court stated:

'From the record now before us it does not affirmatively appear that the trial judge reserved his ruling on defendant's motion for the purpose of considering it in the light of all the evidence, either at the close of all the evidence or after verdict, nor does it appear that he did, in fact, consider all the evidence before making his ruling. This being so, the District Court of Appeal was eminently correct in dismissing an appeal in which the only question raised related to the sufficiency of the evidence.' 104 So.2d at 342.

(See also City of Miami Beach v. Belle Isle Apartment Corp., 177 So.2d 884 (Fla.App., 1965).)

The second case is Lehtola v. Brown Nevada Corporation, 412 P.2d 972 (Nev.1966), in which case Nevada's Supreme Court reinstated a jury verdict for plaintiffs after the trial court had granted a motion for judgment notwithstanding the verdict. The Supreme Court there stated:

'A 41(b) mid-trial motion necessarily tests the evidence as it then exists. Here the court reserved ruling on that motion. Thereafter, the complexion of the case changed as the defendant offered evidence. The record...