DE JEAN v. Great American Indemnity Company

• Decision Date: 06 December 1954
• Docket Number: No. 3977.,3977.
• Citation: 126 F. Supp. 931
• Parties: George P. DE JEAN v. GREAT AMERICAN INDEMNITY COMPANY.
• Court: U.S. District Court — Western District of Louisiana

126 F. Supp. 931

George P. DE JEAN v. GREAT AMERICAN INDEMNITY COMPANY.

No. 3977.

United States District Court W. D. Louisiana, Opelousas Division.

December 6, 1954.

Robert F. De Jean, Opelousas, La., for plaintiff.

Grove Stafford, Alexandria, La., for defendant.

HUNTER, Judge.

This action is one based on negligence and arises under the diversity of citizenship jurisdiction of the court. Defendant, Great American Indemnity Company, was the liability insurer of a third party whose negligence allegedly caused the accident in which plaintiff's wife suffered a fracture of the left leg and subsequently died. The action is brought for her death.

On October 13, 14 and 15, 1954, the case was tried on its merits resulting in a verdict of the jury in favor of plaintiff in the amount of $10,000. At the close of plaintiff's case and all of the evidence, defendant filed motions for directed verdicts. Acting under Rule 50(b), 28 U.S.C.A., the court did not grant the motions but submitted the action to the jury, subject to a later determination of the legal issues involved on the motions. On October 20, 1954, subsequent to the trial and the verdict, the defendant filed a motion to set aside the verdict and to grant to defendant a judgment notwithstanding the verdict. These motions are to be considered together, since the same legal principles are applicable thereto. On October 20, 1954, the defendant filed an alternate motion for a new trial. This motion is to be considered separately, inasmuch as it deals with different legal precepts.

We wish first to discuss the motions for a directed verdict and for a judgment notwithstanding the verdict. No civil engineer would start out on a survey without first finding out how far the survey was to extend. It is just as essential and just as much a time-saver to define in advance the outer limits of the area to be considered in disposing of these motions.

The law applicable to the pending motions has been well set out by the Fifth Circuit Court of Appeals in a case considered on appeal from the Western District of Louisiana (Judge Benjamin C. Dawkins, Sr., trial judge). The language and citation follow:

"As this court has pointed out, a motion for a directed verdict or for a judgment notwithstanding the verdict can be granted only when there is no evidence which, if believed, would authorize a verdict against the movant, while the district judge may grant a new trial when he thinks the verdict is wrong, though supported by some evidence. Marsh v. Illinois Cent. R. Co., 5 Cir., 175 F.2d 498, 500." Audirsch v. Texas & Pacific Rv. Co., 5 Cir., 195 F.2d 629, at page 630.

This presents only one issue before the court. The question is one of law only; whether there is only evidence, which, if believed, would authorize a verdict against defendant. The motion to set aside the verdict and the motion for a directed verdict, on which decision was postponed, are to be subjected to the same test.

Defendant is therefore faced with the problem of demonstrating an all-inclusive negative. It must show that in all the record there is no evidence which, if believed, would justify the verdict. On the other hand, from the standpoint of plaintiff, the pointing out by page and line of specific evidence is all that is needed to prove the existence of some evidence on which the verdict was authorized.

The Supreme Court of the United States has expressed this point clearly in a decision also interesting for its emphasis on the point that the drawing of inferences of fact is a part of the fact-finding process. In Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29, 64 S.Ct. 409, 412, 88 L.Ed. 520, the Supreme Court considered a case involving the questions whether the defendant was negligent and whether such negligence was the proximate cause of the fatal accident. No one knew exactly how Harold Tennant, a railway switchman, had been killed by the train. The jury's verdict was, therefore, based on inferences from the proved facts. The Court of Appeals thought other inferences as to the deceased employee's position and conduct prior to the fatal accident would have been more reasonable. The Court of Appeals declared that there was no substantial proof that the defendant's negligence was the proximate cause of Tennant's death. On certiorari, the Supreme Court summed up as follows:

"It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235 241, 242; Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. 54 68, 63 S.Ct. 444 451, 87 L.Ed. 610 618, 143 A.L.R. 967; Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444 1447, 1448. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.

"Upon an examination of the record we cannot say that the inference drawn by this jury that respondent's negligence caused the fatal accident is without support in the evidence. Thus to enter a judgment for respondent notwithstanding the verdict is to deprive petitioner of the right to a jury trial. No reason is apparent why we should abdicate our duty to protect and guard that right in this case. We accordingly reverse the judgment of the court below and remand the case to it for further proceedings not inconsistent with this opinion.

"Reversed."

The identical situation came up in the Fifth Circuit in Huff v. Louisville and Nashville R. Co., 198 F.2d 347, 348, decided July 24, 1952. Here, see what the Fifth Circuit said in the Huff case:

"Summary judgment is not authorized to cut litigants off from their right of trial by jury if there is any genuine issue for the jury's determination. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967; Chappell v. Goltsman, 5 Cir., 186 F.2d 215, 218. Where negligence may reasonably be inferred even from undisputed facts, it is for the jury to say whether negligence shall be so inferred."

Counsel for defendant is of the opinion that there is not evidence here to justify the jury in reaching its verdict. He says that there is no proof that the lady fell as a result of getting her foot in the crevice, and that the opinion of Judge Hutcheson in Medina v. All American Bus Lines, 5 Cir., 152 F.2d 61, is applicable. We quote from the opinion as follows:

"* * * Plaintiff is here insisting that, though the evidence was entirely circumstantial, it was sufficient to make an issue for the jury. Appellee insists that the evidence shows no more than that there was an accident, and that under settled law the proof that an accident occurred is not proof that it was negligently caused. It insists further that while negligence may be proved by circumstantial evidence, the authorities settle it that the circumstances must be such that an inference of negligence is not purely speculative in its nature.

"We agree with appellee's statement of the law, and a page by page search of the record leaves in no doubt that the evidence showed no more than that a collision occurred, its causes completely unexplained. In this state of the record, a directed verdict for defendant was demanded. The judgment was right. It is affirmed."

Defendant also says that the fall on January 27, 1952 was not a proximate cause of the death of March 22, 1952. We find ourselves almost in accord with him, and will briefly summarize the issues as follows:

Plaintiff is suing for $63,281.14. He is suing for the damages allegedly sustained by him as a result of his wife's death. Hospital, medical and burial expenses amounted to $5,281.14. The pertinent part of the complaint are as follows:

"IV.

"That on January 27th, 1952, at approximately One (1:00) p. m., your complainant's wife, Mrs. George P. De Jean, together with Mr. and Mrs. Frank Montgomery entered the building owned by the said insured, Herbie K. Smith, and which is operated as a restaurant, for the purpose of obtaining a meal. That the said Mrs. George P. De Jean, together with Mr. and Mrs. Frank Montgomery consumed their meal and were in the process of leaving the building of the assured, when the said Mrs. George P. De Jean was approximately at the threshold of the door her left foot apparently slipped a bit and upon placing her right foot down to steady herself, the heel of her right shoe became lodged and held in the crevice at the bottom of the door extending the width of the door from one side to the other and on that portion of the threshold which is slightly raised from the floor, causing the said Mrs. George P. De Jean to fall forward outside of the building, thereby sustaining a serious leg injury which was diagnosed as a fracture of right femur.

"V.

"That the said Mrs. George P. De Jean was immediately taken to the St. Frances Cabrini Hospital in Alexandria, Louisiana and was then removed to Opelousas, Louisiana to the St. Landry Clinic at Opelousas, Louisiana, where she remained for a period of approximately seven (7) weeks, where she remained under care and observance of local physicians

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