Mann v. Safeway Stores, Inc.

• Citation: 518 P.2d 1194,95 Idaho 732
• Decision Date: 08 February 1974
• Docket Number: No. 11220,11220
• Parties: Alexander A. MANN and Mary Mann, husband and wife, Plaintiffs-Appellants, v. SAFEWAY STORES, INC., Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 1194

518 P.2d 1194

95 Idaho 732

Alexander A. MANN and Mary Mann, husband and wife, Plaintiffs-Appellants, v. SAFEWAY STORES, INC., Defendant-Respondent.

No. 11220.

Supreme Court of Idaho.

Feb. 8, 1974.

Webb, Pike Burton & Carlson, Twin Falls, for plaintiffs-appellants.

Robert M. Harwood, Benoit, Benoit & Alexander, Twin Falls, for defendant-respondent.

DONALDSON, Justice.

Plaintiff (appellant), Mary Mann, slipped and fell in the Twin Falls Safeway Store on October 11, 1970. As a result of the fall, she suffered a broken hip. Together with her husband, Alexander Mann, she filed suit against the defendant (respondent), Safeway Stores, Inc., alleging that the proximate cause of her fall and resulting injuries was the negligent manner in which defendant maintained its floor. Trial was had and the jury returned a verdict in favor of Mrs. Mann and her husband. Judgment was duly entered. Defendant then moved the trial court for judgment notwithstanding the veridct (n. o.v.) or, in the alternative, for a new trial. From the grant of that motion, plaintiffs prosecute this appeal. Their sole assignment of error is that the trial court erred in granting defendant's motion for judgment n.o.v.

A motion for judgment n.o.v. admits the truth of the adverse evidence and every inference that may be legitimately drawn therefrom. Fawcett v. Irby, 92 Idaho 48, 436 P.2d 714 (1968); Bratton v. Slininger, 93 Idaho 248, 460 P.2d 383 (1969); Swa v. Farmers Insurance Exchange, 93 Idaho 275, 460 P.2d 410 (1969).

In the past, this Court has framed the test for determining whether a motion for judgment n.o.v. should have been granted in various terms. In Banz v. Jordan Motor Co., 94 Idaho 369, 487 P.2d 1123 (1971), we stated that it should not be granted when there is any evidence to support the verdict. We said basically the same thing in Deshazer v. Tompkins, 93 Idaho 267, 460 P.2d 402 (1969); Bratton v. Slininger, supra; and Loosli v. Bollinger, 90 Idaho 464, 413 P.2d 684 (1966). In those cases, we stated that it should be granted only when there is an absence of evidence to support the verdict of the jury.

A different test is found in Foster v. Thomas, 85 Idaho 565, 382 P.2d 762 (1963), where this Court stated that the trial court erred in granting a motion for judgment n.o.v. because there was sufficient evidence to support the verdict of the jury. This same language was also used in Dreyer v. Zero Refrigeration Lines, Inc., 92 Idaho 83, 85, 437 P.2d 355, 357 (1968):

'Plaintiff also must come forward with competent evidence sufficient to permit a reasonable man to find in accord with plaintiff's position on both issues, and if plaintiff fails to establish such a prima facie case, the trial court must order the action dismissed or on motion grant a directed verdict or judgment non obstante verdicto.'

Finally, the test was stated to be substantial evidence in Mabe v. State ex rel. Rich, 86 Idaho 254, 385 P.2d 401 (1963) and Dawson v. Olson,94 Idaho 636, 496 P.2d 97 (1972). In the Dawson case, this Court stated:

'Before reviewing these arguments we acknowledge at the outset that we are entering the province of the jury and may not uphold the judgment n.o.v. unless the facts are undisputed and permit only one reasonable conclusion to be reached after all inferences are drawn in favor of appellants.' 94 Idaho at 640, 496 P.2d at 101.

We then went on to say:

'When all inferences are drawn in favor of appellants, the verdict is sufficiently supported by substantial evidence that it should not be set aside.' 94 Idaho at 641, 496 P.2d at 102.

For the reasons that will be discussed, we have concluded that the proper test to be applied in determining whether it is proper to grant judgment n.o.v. is found in Dawson v. Olson, supra; that is, a motion for judgment n.o.v. should not be granted when there is substantial competent evidence to support the verdict of the jury.

When a jury's verdict is appealed directly to this Court, and not from the grant or denial of a motion for judgment n.o.v., I.C. § 13-219 states that it must not be set aside if supported by substantial evidence.

'Upon an appeal from a judgment the court may review the verdict or decision and any intermediate order or decision, if excepted to, which involves the merits or necessarily affects the judgment, except a decision or order from which an appeal might have been taken: provided, that whenever there is substantial evidence to support a verdict the same shall not be set aside.' (emphasis added)

This provision does not apply to an appeal from the trial court's grant or denial of a motion for judgment n.o.v. since that decision is appealable under I.C. § 13-201 (1972 Supp.). Seamons v. Spackman, 81 Idaho 361, 341 P.2d 442 (1959). If we were to continue to use the 'any evidence' test used in Banz v. Jordan Motor Co., supra, it is conceivable that a jury's verdict appealed directly to this court pursuant to I.C. § 13-219 could be reversed because it is not supported by substantial evidence while that same jury's verdict would stand if, after the verdict is rendered, a motion for judgment n.o.v. is made and the appeal is taken pursuant to I.C. § 13-201 from the grant or denial of that motion. This inconsistent result is possible because under the 'any evidence' test, the verdict would stand if supported by any evidence, even arguably a mere scintilla of evidence.fn1fn There is no logic in a rule which provides that the validity of a jury's verdict will be judged by one standard if it is appealed directly to this Court while that same verdict will be judged by another merely because a remedy other than direct appeal is chosen. In order to avoid such a result, we have concluded that the same test is to be applied to both situations so that it is improper to grant a motion for judgment n.o.v. when the verdict of the jury is supported by substantial evidence.fn2fn Obviously, that evidence must also have been properly admitted at the trial.

By substantial, it is not meant that the evidence need be uncontradicted. All that is required is that the evidence be of such sufficient quantity and probative value that reasonable minds could conclude that the verdict of the jury was proper. It is not necessary that the evidence be of such quantity or quality that reasonable minds must conclude, only that they could conclude. Therefore, if the evidence is so weak that reasonable minds could not reach the same conclusion the jury has, the motion for judgment n.o.v. is properly granted. See Mabe v. State ex rel, Rich, supra; Dawson v. Olson, supra.

Because a motion for judgment n.o. v. is a delayed motion for directed verdict, this new standard of substantial evidence must also be applied to motions for directed verdicts made pursuant to I.R.C.P. 50(a). If a motion for directed verdict has already been made and denied by a trial court, a motion for judgment n.o.v. allows the trial court the opportunity to correct its error in not granting the earlier motion if the grant of that motion should have been made. Ralph v. Union Pacific Railroad Co., 82 Idaho 240, 351 P.2d 464 (1960). Thus, it is necessary that that same standard be applied to both motions.

In the past, this Court has applied the substantial evidence standard to motions for involuntary nonsuit made pursuant to I.R.C.P. 41(b).

'The wording of the defendant's motion for a dismissal indicates that the motion was made pursuant to I.R.C.P. 41(b). In 2B Barron and Holtzoff, Federal Practice and Procedure, Sec. 919, p. 148, the rule with regard to the granting of such a motion is stated as follows:

'In a jury case, sufficiency or insufficiency of the evidence upon a motion for dismissal-or a motion for directed verdict as it should be called-depends upon the facts and circumstances of each case * * *. It is sufficient to say that an involuntary dismissal should be denied when substantial testimony meets the burden of proof and warrants submission to a jury. The testimony and all reasonable inferences therefrom must be viewed in the light most favorable to the plaintiff. " Shaffer v. Adams, 85 Idaho 258, 263, 378 P.2d 816, 818 (1963).

This standard will continue to be applied since a motion for nonsuit made pursuant to I.R.C.P. 41(b) is indistinguishable in operation and effect from a motion for directed verdict made pursuant to I.R.C.P. 50(a).

However, the substantial evidence standard will not be applied to motions for new trial even though that motion is usually made at the same time as a motion for judgment n.o.v. This Court has long adhered to the principle that the granting of a motion for a new trial is within the discretion of the trial court and will not be reversed without a showing of abuse of discretion. As we stated in Banz v. Jordan Motor Co., supra:

'However, in the case of review of a trial court's order granting a new trial, the test to be applied by this court is whether the record discloses a manifest abuse of discretion by the trial court.' 94 Idaho at 372, 487 P.2d at 1126.

This decision is properly left to the discretion of the trial court for the trial court has the duty to grant a new trial where prejudicial errors of law have occurred at the trial, even though the verdict of the jury is supported by substantial evidence. See I.C. § 10-602.

It is the duty of this Court to review the record to determine if there is substantial competent evidence supporting the verdict of the jury. Viewed in the light most favorable to the plaintiffs, the evidence shows the following. Plaintiff had gone to defendant's store to purchase some oranges for her older brother who lived with her and her husband. While walking down one of the aisles, her feet shot out from behind her and she fell forward onto the floor.

Mrs. Donna Mason, plaintiff's niece, testified that she came to the store upon being notified of the fall. While there, she noticed a skid mark, about eighteen inches long, on the floor in the...