Little v. Bankers Life & Casualty Company

• Citation: 426 F.2d 509
• Decision Date: 13 May 1970
• Docket Number: No. 28283.,28283.
• Parties: Charles R. LITTLE, Plaintiff-Appellant, Cross-Appellee, v. BANKERS LIFE AND CASUALTY COMPANY, Defendant-Appellee, Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

426 F.2d 509 (1970)

Charles R. LITTLE, Plaintiff-Appellant, Cross-Appellee, v. BANKERS LIFE AND CASUALTY COMPANY, Defendant-Appellee, Cross-Appellant.

No. 28283.

United States Court of Appeals, Fifth Circuit.

May 13, 1970.

Bowling & Coleman, Francis S. Bowling, Jackson, Miss., Fountain D. Dawson, Greenville, Miss., for plaintiff-appellant, cross-appellee.

W. Swan Yerger, Jackson, Miss., for defendant-appellee, cross-appellant.

Before JOHN R. BROWN, Chief Judge, AINSWORTH and GODBOLD, Circuit Judges.

AINSWORTH, Circuit Judge.

This Mississippi-based diversity action is predicated upon an insurance company's refusal to pay proceeds allegedly due the named beneficiary under a certificate of insurance the company had issued covering death by accidental bodily injury to the named insured. The policy expressly excluded death by suicide from its coverage, and the insurer denied liability to the beneficiary in part on the ground that the named insured intentionally killed herself. The jury returned a verdict in favor of the insurer, and the District Judge overruled the beneficiary's motion for a new trial. For reasons that follow, we are bound by the jury's specific finding that death of the named insured was intentionally self-inflicted. The judgment that Little take nothing does not amount to a manifest miscarriage of justice, and we cannot say that the District Judge abused his discretion in refusing to grant a new trial. Accordingly, we affirm the judgment of the District Court.

Charles R. Little, the appellant here, commenced this action against Bankers Life and Casualty Company in the Circuit Court of Washington County, Mississippi. He sought to recover the benefits payable under a policy the insurance company had issued covering the death of his wife, Mary, by accidental bodily injury. The suit was removed to federal court by the insurer. A jury trial was subsequently conducted in which both sides adduced testimony regarding the circumstances of Mary Little's death. The case was then submitted to the jury along with certain special interrogatories. In addition to returning a verdict in favor of the insurer, the jury specifically found that Mary Little died as a result of self-destruction rather than accidental bodily injury. At no time before or after the case was submitted to the jury did Charles Little move for a directed verdict in his favor. After the jury verdict was returned, however, he did move for a new trial. His motion in part challenged the sufficiency of (1) the evidence supporting the submission of the cause-of-death issue to the jury and (2) the evidence supporting the specific finding of self-destruction.¹ On this appeal he continues to challenge the sufficiency of that evidence.²

In this Circuit it is well established that the sufficiency of the evidence supporting jury submission of a case or the jury's findings is not reviewable on appeal unless the party seeking review has made a motion for a directed verdict in the trial court. E.g., Forgason v. Penrod Drilling Company, 5 Cir., 1969, 409 F.2d 813; Privett v. Dixon, 5 Cir., 1968, 393 F.2d 479; Brown v. Burr-Brown Research Corporation, 5 Cir., 1967, 378 F.2d 822; Pennsylvania National Mutual Cas. Ins. Co. v. Nathan, 5 Cir., 1966, 361 F.2d 18. This rule applies to diversity cases. See Lighting Fixture & Elec. Sup. Co. v. Continental Ins. Co., 5 Cir., 1969, 420 F.2d 1211; Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365 (en banc). The reasons behind the rule are sound. For example, a litigant may not gamble on the jury's verdict and then later question the sufficiency of the evidence on appeal. Taylor v. Gulf States Utilities Company, 5 Cir., 1967, 375 F.2d 949, 950. Similarly, the litigant who has not moved for a directed verdict in the trial court must have been of the view that the evidence made a case for the jury; he should not be permitted on appeal to impute error to the trial judge for sharing that view. See 2B Barron & Holtzoff, Federal Practice and Procedure § 1081, at 424 (Wright rev. ed. 1961). This point is illustrated here. The record shows that a major concern of the beneficiary's in the trial court was that the insurer was moving for a directed verdict in its favor.

Since Little did not move for a directed verdict in the District Court, our review of the sufficiency of the evidence regarding the cause-of-death issue is consequently foreclosed. We may inquire whether there was any evidence supporting the submission of the suicide issue and the jury's finding that Mrs. Little's death was a suicide, but we may not question the sufficiency of whatever evidence we do find. Hoover, Inc. v. McCullough Industries, Inc., 5 Cir., 1967, 380 F.2d 798, 801. Our consideration is limited to whether plain error has been committed which, if not noticed, would result in a manifest miscarriage of justice. Forgason v. Penrod Drilling Company, 5 Cir., 1969, 409 F.2d 813; 2B Barron & Holtzoff, Federal Practice and Procedure § 1081, at 425-426 (Wright rev. ed. 1961). No further may we delve. When, as in this case, a motion for a new trial has been made on the ground of insufficient evidence to support the verdict and the like, the failure by the losing party to move for a directed verdict as well still operates to foreclose consideration of the question of sufficiency on appeal, and the appellate court may inquire only whether the trial court abused its discretion in overruling the motion for a new trial. Brown v. Burr-Brown Research Corporation, 5 Cir., 1967, 378 F.2d 822, 824; Pruett v. Marshall, 5 Cir., 1960, 283 F. 2d 436.

The evidence presented in the District Court regarding the cause of Mrs. Little's death may be summarized as follows. Mrs. Little was found dead, slumped on the front seat of her car, in an isolated area. Under her body was an empty pill bottle. She had recently had this bottle filled with fifty prescription tranquilizers (Doriden). Another bottle, partially full of a different brand of tranquilizer pills (Miltown) was also found in the...