Great Atlantic and Pac. Tea Co., Inc. v. Sealy

• Decision Date: 14 September 1979
• Citation: 374 So.2d 877
• Parties: The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., a corp. v. James SEALY. James SEALY v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., a corp. Ex parte James SEALY. (Re James Sealy v. The Great Atlantic and Pacific Tea Co., Inc., a corp.). 77-707, 77-707X and 77-723.
• Court: Alabama Supreme Court

Page 877

374 So.2d 877

The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., a corp. v. James SEALY.

James SEALY v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., a corp.

Ex parte James SEALY.

(Re James Sealy v. The Great Atlantic and Pacific Tea Co., Inc., a corp.).

77-707, 77-707X and 77-723.

Supreme Court of Alabama.

Sept. 14, 1979.

Daniel A. Pike of Sintz, Pike, Campbell & Duke, Mobile, for the Great Atlantic & Pac Tea Co., Inc., appellant, cross-appellee, respondent.

Bert S. Nettles, J. F. Janecky and J. Harley McDonald, Jr., Mobile, for James Sealy, appellee, cross-appellant, petitioner.

EMBRY, Justice.

Defendant/appellant, The Great Atlantic and Pacific Tea Company, Inc. (A & P) appeals from a jury verdict awarding the plaintiff/appellee, James Sealy, $185,000 as compensation for property damage and personal injuries which he alleged were proximately caused by the negligence of a truck driver employed by A & P in parking an A & P truck on a paved improved shoulder of a busy street within the police jurisdiction of Mobile, Alabama. A & P contends the trial judge should have directed a verdict in its favor because the evidence was insufficient, as a matter of law, to prove its truck driver's negligence was the proximate cause of Sealy's injuries. A & P also asserts the trial court committed reversible error in charging the jury concerning the Traffic Code of the City of Mobile. Sealy asserts that the issue of the sufficiency of the evidence is not before this court, because A & P failed to timely file a motion for J.N.O.V. Sealy also contends the trial court improperly reduced the jury award by $10,000 and requests this court to issue a writ of mandamus demanding the trial judge to reinstate the original verdict. We hold that the original verdict should be reinstated, and should the trial court fail to reinstate it on the basis of this decision, a writ will be issued to effectuate this decision upon the request of Sealy. We affirm the judgment as it will be corrected to reflect the original jury verdict.

Sealy began this action against Elizabeth Hagler and Kermit Phillip Hagler, claiming damages in the amount of $150,000 for personal injuries and property damage resulting from the negligent operation of an automobile by Elizabeth Hagler.

Sealy subsequently added A & P as party defendant and amended his complaint to add two additional counts, count two and count three. Count two alleged negligence on the part of the defendant, A & P, in causing or allowing one of its trucks to be illegally or improperly parked so as to cause an obstruction to the vision of both Sealy and Elizabeth Hagler. The obstruction was alleged to be a proximate and contributing cause of the collision which injured Sealy. Count three alleged wanton conduct on the part of A & P.

Prior to trial, Sealy and the Haglers agreed to a Pro tanto settlement of $10,000. Pursuant to that agreement, the trial court entered an order of dismissal with prejudice of Sealy's claim against the Haglers. Sealy again amended his complaint, increasing the Ad damnum clause to $350,000.

The case proceeded to trial against A & P. At the close of plaintiff's evidence, A & P filed a written motion for directed verdict which was denied as to Sealy's simple negligence claim but granted as to his wantonness claim. After conclusion of the trial, the jury returned a verdict in the amount of $185,000 and judgment was entered in that amount on that same day. A & P did not file a motion to alter or amend the judgment within the prescribed thirty day period. Thirty-three (33) days after entry of judgment, A & P filed motion for a judgment N.O.V. or in the alternative for a new trial. Both were denied.

Forty-two (42) days after entry of judgment, A & P's counsel orally requested the trial court to amend the judgment. Thereupon, the trial court entered an order reducing the judgment to $175,000. ¹ Sealy was not given notice or a hearing regarding A & P's request.

This case concerns a vehicular accident which occurred 30 July 1976 on U. S. Highway 90 (Alabama Highway 16) in an unincorporated community within the police jurisdiction of Mobile, Alabama. It involved three vehicles: plaintiff Sealy's motorcycle; a tractor-trailer rig owned by A & P, and an automobile driven by Elizabeth Hagler.

As mentioned earlier, the accident occurred on U. S. Highway 90 (also Alabama Highway 16) which runs in a east-west direction. At the point of impact of Sealy's motorcycle and Hagler's car there are two lanes for traffic proceeding east and two for that proceeding west. The highway is divided by a median. The impact occurred on the north side of the highway which contains, in addition to the two lanes for through traffic, a left turn lane and an improved, paved, shoulder which is often used as a right turn lane into a shopping center.

At the time of the accident, Sealy was proceeding west at approximately 30 miles per hour. The A & P truck was parked on the improved shoulder about fifteen feet east of a private entrance road to a shopping center, was unoccupied, and had been parked on the shoulder while the driver was at a Pitt Grill restaurant. The evidence tends to show the A & P truck severely blocked the vision of drivers attempting to exit the shopping center.

At the time of the accident, Mrs. Hagler was attempting to exit the shopping center and proceed east on Highway 90. She testified the A & P truck did partially block her vision of westbound traffic. She pulled into the westbound lanes of Highway 90, and Sealy's motorcycle impacted with her car causing him severe injuries. Mrs. Hagler testified by deposition that she never saw Sealy or his motorcycle until the impact. Sealy testified he did not see Mrs. Hagler's vehicle until immediately before he crashed into it. The evidence indicated traffic was heavy on both Highway 90 and the shopping center exit road at the time of the accident.

I

A & P urges this court to reverse on the ground that the trial court committed reversible error in denying its motion for a directed verdict at the close of Sealy's evidence. In essence, A & P is asking us to examine the sufficiency of the evidence. This we cannot do because A & P did not properly move for a judgment notwithstanding the verdict within the prescribed thirty day period. Failure to make a timely motion for J.N.O.V. waived any right A & P had to attack the sufficiency of the evidence on appeal.

Under Rule 50(b), ARCP, a party who has moved for a directed verdict may move for a judgment notwithstanding the verdict no later than 30 days after the entry of judgment. This time period cannot be extended. Rule 6(b), ARCP. In this case A & P made its motion for J.N.O.V., and in the alternative for a new trial, thirty-three days after entry of judgment; therefore, the motion for J.N.O.V. was not properly before the trial court, could not be considered by it, and was barred by a time limit that could not be enlarged. Wright and Miller, Federal Practice and Procedure, § 2537. As a result of the running of the thirty day time period, A & P could not attack the sufficiency of the evidence by post-trial motion which is, in effect, a renewal of its motion for directed verdict. See Rule 50(b) ARCP, and Housing Authority of City of Prichard v. Malloy, 341 So.2d 708 (Ala.1977).

Whether A & P can now attack the sufficiency of the evidence on appeal by asserting as error the trial court's denial of its timely motion for directed verdict is an issue that has not been heretofore addressed by this court but has been by the federal courts, in particular, the Fifth Circuit. Since Rule 50(b), ARCP, is almost identical to Rule 50(b), FRCP, we elect to follow the Fifth Circuit decisions and hold that a timely post-trial motion for judgment notwithstanding the verdict is necessary to permit an appellate court to consider the sufficiency of the evidence. University Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518 (1974); Porter v. Eckert, 465 F.2d 1307 (1972); Stockton v. Altman, 432 F.2d 946 (1970), certiorari denied 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 532; Delchamps, Inc. v. Borkin, 429 F.2d 417 (1970); Parker v. American Oil Co., 327 F.2d 987 (1964). See also, Johnson v. New York, N. H & H. R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947). See generally, Lyons, 2 Alabama Practice 207 (1973); 5A Moore's Federal Practice, P P 50.12, 50.05.

The reason for requiring a party to move for J.N.O.V. is inherent in the very nature of Rule 50. Rule 50 sets up an interlocking set of procedures that allow a party to attack the sufficiency of his opponent's evidence. Those procedures are closely related and must be followed. Their interlocking relationship is demonstrated by the fact that a post-trial motion for J.N.O.V. is really just a renewal of a party's motion for directed verdict, and the J.N.O.V. motion cannot be granted unless the motion for directed verdict should have been granted. See Malloy, supra. Also inherent in Rule 50 is the intent to place the primary responsibility on the trial judge to determine the sufficiency of the evidence. To facilitate this responsibility Rule 50(b) allows the trial court to reserve a ruling on the sufficiency of the evidence until after the jury verdict. The United States Supreme Court in Cone v. West Virginia Pulp & Paper Co., supra, stated:

" * * * And he can exercise this discretion with a fresh personal knowledge of the issues involved, the kind of evidence given, and the impression made by witnesses. His appraisal of the bona fides of the claims asserted by the litigants is of great value in reaching a conclusion as to whether a new trial should be granted. Determination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has...