Lewis v. Nelson

• Decision Date: 14 April 1960
• Docket Number: No. 16334.,16334.
• Citation: 277 F.2d 207
• Parties: Mary E. LEWIS, Appellant, v. John D. NELSON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

277 F.2d 207 (1960)

Mary E. LEWIS, Appellant, v. John D. NELSON, Appellee.

No. 16334.

United States Court of Appeals Eighth Circuit.

April 14, 1960.

David Collins, Macon, Mo., for appellant.

Harry Carstarphen, Hannibal, Mo., for appellee.

Before SANBORN, MATTHES, and BLACKMUN, Circuit Judges.

MATTHES, Circuit Judge.

This is a wrongful death action arising out of a collision between two automobiles which occurred in the State of Missouri. Diversity of the parties and the amount in controversy establish jurisdiction. The substantive law of Missouri controls. We shall refer to the parties as they were designated in the trial court.

At the close of all the evidence, defendant moved the court to direct a verdict in his favor. Therein it was asserted that plaintiff's decedent was guilty of negligence that caused and brought about the collision; and that "there is want of any evidence to sustain the charges of primary negligence against the defendant." The court provisionally overruled this motion at the time it was presented, and submitted the action to the jury subject to a later determination of the legal question raised by the motion. See Rule 50(b), Rules of Civil Procedure, Title 28 U.S.C.A. After a verdict was returned for plaintiff, defendant filed a timely motion for judgment "in accordance with motion for directed verdict." After due consideration, the court sustained this after-trial motion, sustained the motion for directed verdict offered at the close of the whole case, set aside the jury verdict, and entered judgment in favor of defendant on plaintiff's cause of action. From this judgment plaintiff has perfected her appeal to this Court.

At the outset, we are confronted with plaintiff's attack upon the sufficiency of defendant's motion for judgment to preserve and present the question of the submissibility of plaintiff's case. As we have seen, in his motion for directed verdict presented at the close of the evidence, one of the grounds relied on was insufficiency of the evidence to sustain the charge of primary negligence. This likewise served as the basis or ground for the after-trial motion for judgment.

There is hardly room for misunderstanding as to the requirements of a motion for directed verdict. It "shall state the specific grounds therefor." Rule 50(a), Federal Rules of Civil Procedure. As we pointed out in Randolph v. Employers Mutual Liability Ins. Co. of Wis., 8 Cir., 260 F.2d 461, at page 465, certiorari denied 359 U.S. 909, 79 S.Ct. 585, 3 L.Ed.2d 573, "(t)he purpose of such requirement is to apprise the court of the movant's position," and failure of a motion to state the specific ground relied upon is sufficient basis for denying the same. Randolph v. Employers Mutual Liability Ins. Co. of Wis. ibid. While the instant motion for directed verdict could have been more specific by detailing wherein the evidence failed to sustain the charge of negligence, it is apparent that the trial court fully understood that the motion was designed and intended to present the point that there was no evidence affording proof that defendant drove his automobile on the wrong side of the road.¹ We hold that the motion for directed verdict was sufficient to form a basis for the motion for judgment notwithstanding the verdict. Cf. Railway Express Agency, Inc. v. Epperson, 8 Cir., 240 F.2d 189, at page 193.

Before getting to the meat of the case, it should be observed that plaintiff patterned her action on the rules of the road which were in effect in Missouri prior to August 29, 1953. Under § 304.020(2) RSMo 1949, V.A.M.S., every person operating a vehicle upon the highways of Missouri was required to keep the same "as close to the right-hand side of the highway as practicable." One of the assignments of negligence in plaintiff's petition charged a violation of the above rule, together with the further allegation that defendant "negligently drove said Cadillac automobile across the center of said highway onto Lewis' side of said highway * * *." The foregoing statute was repealed and re-enacted in 1953. The new section, § 304.015, subd. 2, V.A.M.S., Laws 1953, p. 587, provides that upon all public roads or highways a vehicle shall be driven "upon the right half of the roadway, except as follows:" (Exceptions not material here). Since the instant collision occurred on March 19, 1958, there was no duty imposed upon defendant to drive and operate his automobile "as close to the right-hand side of the highway as practicable." Berry v. Harmon, Mo.Sup., 329 S.W.2d 784, at page 789. Nevertheless, in its charge the court adopted plaintiff's theory and submitted failure to keep as close to the right-hand side as practicable as an element of negligence. Perhaps this submission accounted for the verdict, as the jury might well have found that, although defendant operated his automobile on the right side of the highway, he failed to comply with the mandate to drive as close as practicable to the right-hand side thereof. In considering the after-trial motion for judgment, the court recognized that the re-enactment of the Missouri statute had materially changed the rule of the road in the respect noted. However, the court further found that plaintiff's proof failed to show that defendant operated his automobile at any place other than his right half of the road, and consequently plaintiff had "failed to make a factual case" under the law of Missouri.

The meritorious question simply stated is: Was there adequate evidentiary basis to make the issue of whether the defendant drove and operated his automobile on the wrong side of the highway one of fact for the jury?

Plaintiff urges upon us the contention that Missouri law must be applied to determine whether a submissible case was made. In considering the test that should be followed, the Supreme Court of the United States in the recent case of Dick v. New York Life Ins. Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 926, 3 L.Ed.2d 935, had this to say:

"Lurking in this case is the question whether it is proper to apply a state or federal test of sufficiency of the evidence to support a jury verdict where federal jurisdiction is rested on diversity of citizenship. On this question, the lower courts are not in agreement. Compare Rowe v. Pennsylvania Greyhound Lines Inc., 2 Cir., 231 F.2d 922; Cooper v. Brown, 3 Cir., 126 F.2d 874; Lovas v. General Motors Corp., 6 Cir., 212 F.2d 805, with Davis Frozen Foods Inc. v. Norfolk Southern Ry. Co., 4 Cir., 204 F.2d 839; Reuter v. Eastern Air Lines, 5 Cir., 226 F.2d 443; Diederich v. American News Co., 10 Cir., 128 F. 2d 144. And see Morgan, Choice of Law Governing Proof, 58 Harv.L. Rev. 153, 174, and 5 Moore\'s Federal Practice (2d ed. 1951), § 38.10. But the question is not properly here for decision because, in the briefs and arguments in this Court, both parties assumed that the North Dakota standard applied."

We followed the teaching of the Supreme Court in Ford Motor Company v. Mondragon, 8 Cir., 271 F.2d 342, 345. The parties have proceeded in this Court on the theory that the Missouri test governs, and since there is little difference, if any, in the state and federal standards, we shall apply what we recognize to be the Missouri standard. Dick v. New York Life Ins. Co., supra; Ford Motor Company v. Mondragon, supra.

We must resolve all disputed factual questions in plaintiff's favor, and give her the benefit of all reasonable inferences to be drawn from the evidence. However, she is not entitled to the benefit of unreasonable inferences, or inferences at war with undisputed facts. See Russell v. Turner, 8 Cir., 148 F.2d 562, 565; Thompson v. Lillehei, 8 Cir., 273 F.2d 376, 378.

The Missouri courts follow a similar rule in passing upon the submissibility of a case. In Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623, 629, the Court stated:

"Appellant also insists, as stated, that she is entitled to a favorable view of the evidence and to all favorable inferences therefrom. While such is the rule, it is also well settled that outstanding conceded facts may not be disregarded when applying the rule. * * * Nor does the rule require the court `to disregard the dictates of common reason and to accept as correct or true that which obviously, under all the circumstances in evidence, cannot be correct or true, nor does it require us to give plaintiff the benefit of any other than reasonable inferences.\' Hill v. Illinois Terminal Co., Mo. App., 100 S.W.2d 40, 47(4)."

See also, Daniels v. Smith, Mo., 323 S.W. 2d 705, 706, 709, 710. With these guides in mind, we proceed to the evidence:

On March 19, 1958, plaintiff and her husband, the deceased, Loren E. Lewis, were proceeding south on U.S. Highway No. 69 near Cameron, Missouri, with Mr. Lewis driving, when their 1954 Chevrolet automobile came into collision with a northbound Cadillac sedan driven by defendant. Mr. Lewis received injuries which caused his death. There were two automobiles in front of defendant's Cadillac, proceeding north, and one behind, also proceeding in the same direction. The first of these four northbound vehicles was a maroon colored Cadillac, the second was a green Chevrolet, followed by defendant's Cadillac, which was in turn followed by a Ford driven by one Sturm in which Sturm's uncle Mr. Rezac, was riding. There were three passengers in defendant's automobile, his wife, his sister and his brother-in-law.

Since the evidence favorable to defendant should not be considered in resolving the question before us, it is sufficient to say that there was positive direct testimony that at the time of the collision defendant's automobile was at least one and one-half feet to the right or east of the center line, and that, prior to the collision with defendant, the plaintiff's automobile struck the left rear fender of the maroon colored Cadillac (the first of the four northbound vehicles) when it was to the right of the center line.

Mrs. Lewis...