Harwell v. Westchester Fire Ins. Co.

• Decision Date: 28 April 1975
• Docket Number: No. 74-1441,74-1441
• Citation: 508 F.2d 1245
• Parties: Beatrice HARWELL, Individually, and Beatrice Harwell, as Administratrix of the Estate of Roy R. Harwell, Deceased, Appellee, v. WESTCHESTER FIRE INSURANCE COMPANY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1245

508 F.2d 1245

Beatrice HARWELL, Individually, and Beatrice Harwell, as Administratrix of the Estate of Roy R. Harwell Deceased, Appellee, v. WESTCHESTER FIRE INSURANCE COMPANY, Appellant.

No. 74-1441.

United States Court of Appeals, Eighth Circuit.

Submitted Nov. 13, 1974.

Decided Dec. 9, 1974, Rehearing and Rehearing En Banc Denied

Jan. 20, 1975, Certiorari Denied April 28, 1975,

See 95 S.Ct. 1681.

Michael E. Hale, Little Rock, Ark., for appellant.

Eugene J. Mazzanti, Little Rock, Ark. for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and MEREDITH, Chief District Judge. ¹

VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal by the defendant insurer from final judgment entered against it and order overruling its motion for judgment n.o.v. Beatrice Harwell, individually and as administratrix of the estate of her husband, brought this action for damages sustained as a result of the death of Mr. Harwell, a pedestrian on U.S. Highway 59, alleged to have been caused by the negligent operation by Dorothy Lyssyj of her automobile. This action is a direct action against the defendant insurer based upon the uninsured motorist provision in a policy issued by the defendant to decedent Harwell. It is agreed that such policy was in full force and effect and that Dorothy Lyssyj is an uninsured motorist. Jurisdiction based on diversity of citizenship and the requisite amount is established.

Defendant made timely motions for directed verdict at the close of plaintiff's evidence and again at the close of all the evidence and made motion for judgment n.o.v. subsequent to the judgment entered against it on a jury verdict for $10,000.00 damages plus a penalty of $1,200.00 and $3,600.00 attorneys' fees awarded under Arkansas Statute 66-3238. Such motions were based upon the ground that there is no substantial evidence to support a finding that Dorothy Lyssyj was guilty of any act of negligence. All such motions were overruled.

The sole issue upon this appeal is whether the court erred in holding that there was sufficient evidence presented to support a jury finding that Dorothy Lyssyj was negligent in any respect asserted in the operation of her automobile. For reasons hereinafter stated, we hold that there is no substantial evidence to support the jury finding of megligence. We shall first set out the applicable Arkansas law and then apply such law to the facts of the case.

Federal courts follow the conflict of laws rules prevailing in the forum state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496-497, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The Arkansas conflict rule is that the issue of the sufficiency of the evidence is procedural and thus is determined by Arkansas law. Bell Transportation Co. v. Morehead, 246 Ark. 170, 437 S.W.2d 234, 237 (1969). Both parties have argued the case on the basis that Arkansas law controls. As we have frequently noted, the Supreme Court in Dick v. New York Life Ins. Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959), raised but declined to resolve the issue of whether the state or federal test of sufficiency of the evidence to support a verdict should be applied where federal jurisdiction is based on diversity of citizenship. For a good discussion of cases arising since Dick, see Wetzel v. Eaton Corp., 62 F.R.D. 22, 25-26 (D.C.Minn. 1973). We need not reach such issue here as we have determined that the federal test and the Arkansas test of sufficiency of the evidence are substantially the same. Marshall v. Humble Oil & Refining Co., 459 F.2d 355, 358-359 (8th Cir. 1972); Bennett v. Wood, 271 F.2d 349, 351 (8th Cir. 1959).

In McKim v. Northwestern National Casualty Co., 505 S.W.2d 756 (Ark. 1974), the court affirmed a directed verdict for the defendant in a pedestrian case very similar factually to the case before us. No eyewitness testimony was offered in that case. The plaintiff could not recall evidence leading to the accident as he suffered from retrograde amnesia caused by his injuries. The court recognized the rule that 'a well-connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, . . . and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions.' 505 S.W.2d at 757. The court held:

We have no hesitancy in concluding that at most, appellant's evidence would do nothing more than afford the jury a choice of possibilities. when the evidence presents no more than such choice we have said that it is not substantial. Kapp v. Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962). In the case at bar the appellant alleged: (a) failure to keep lookout, (b) inadequate warning, (c) excessive speed, (d) lack of required control, and (e) inadequate headlights. Applying the facts and circumstances established, we are simply unable to say that either of the allegations is supported by substantial evidence. Possibility of proximate cause is not enough; a reasonable probability must be shown by substantial evidence. (505 S.W.2d at 757-758.)

In our present case numerous specifications of negligence were asserted. The court submitted only two of such specifications to the jury, lookout and control. The court expressed the view that execessive speed had not been established and refused to submit...