McNamara v. American Motors Corporation

• Citation: 247 F.2d 445
• Decision Date: 23 July 1957
• Docket Number: No. 16347.,16347.
• Parties: Elvera V. McNAMARA, Appellant, v. AMERICAN MOTORS CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

247 F.2d 445 (1957)

Elvera V. McNAMARA, Appellant, v. AMERICAN MOTORS CORPORATION, Appellee.

No. 16347.

United States Court of Appeals Fifth Circuit.

July 23, 1957.

John Ruff, John P. Grier, and Wm. J. Pruitt, Miami, Fla., Ruff & Ready, South Miami, Fla., of counsel, for appellant.

Joseph F. Bowen, T. J. Blackwell, and S. J. Powers, Jr., Miami, Fla., Blackwell, Walker & Gray, Miami, Fla., for appellee.

Before HUTCHESON Chief Judge, and TUTTLE and CAMERON, Circuit Judges.

HUTCHESON, Chief Judge.

Brought under Sections 45.11, 768.01, 768.02, Florida Statutes Annotated, the suit sought damages for the wrongful death of plaintiff's husband through the alleged misfunctioning of a 1953 Hudson Hornet automobile.

The claim was that the defendant was negligent in "designing and/or building a car that caused injury to a person making use of it. * * * in that in their 1953 Hudson Hornet the outside jacket tubing of the steering column would turn in its mountings so that the hydramatic transmission would actually be in low gear when the gearshift lever was pulled all the way down and the indicator dial showed it to be in `reverse', thereby causing the car to go forward instead of backward; which resulted in the death of her husband by drowning when the said Hudson plunged into the Miami River."

The defense was a denial of plaintiff's allegations and a claim that the death of plaintiff's decedent was caused or contributed to by his negligence.

On the issue thus joined, the cause went to trial before the judge and a jury, and, at the conclusion of plaintiff's evidence, defendant moved, for a directed verdict in his favor, upon the several grounds set out in its motion,¹ that the evidence wholly failed to make out a case against the defendant. The district judge, after hearing argument on the motion and prefacing his action with a brief statement,² directed a verdict in favor of the defendant, and, the verdict returned, entered judgment thereon.

Appealing from that judgment, upon two specifications of error,³ plaintiff is here insisting that plaintiff's evidence taken, as it is required to be, in the light most favorable to her contentions, did present an issue for the jury, and the judgment should therefore be reversed and the cause remanded for trial anew.

We cannot at all agree. On the contrary, we think the plaintiff's claim is untenable in law and in fact. It is untenable in law because it unwarrantedly assumes, contrary to settled law,⁴ that theory and speculation, as to how decedent's death occurred, can serve as evidence, satisfying plaintiff's burden to make out her case, and shifting to defendant the burden of showing by evidence that plaintiff's theory was wrong, or of coming forward with a theory of its own, as to decedent's death, and evidence showing it to be a better, that is a more plausible, theory than the one plaintiff advances.

It is untenable in fact because, as appellant herself admits, it is not sufficient for her to show that it was possible for the accident to have happened in the way she theorized it did, she must show that it was more probable that it happened that way, and yet she offers no evidence whatever showing or tending to show that the facts required by her theory actually existed. These required facts are:

(1) that the car was in the defective condition before the accident that it was in after the accident;

(2) that the car was parked in the Salem Inn parking lot on the right side of the inn building between the road and the river, about five feet from and facing the bank;

(3) that the men got into the car, and the driver, unaware of the defective condition in the car, undertook to back out of the parking lot and onto the road, but, because of the defective condition, the car leaped forward, carrying car and occupants over the bank and, turning turtle as it fell, wound up in the middle and bottom of the river with the back of the car toward the bank. Not a single syllable of direct testimony was offered, and not a circumstance relied on tended, to prove any of these facts. Instead, plaintiff offering evidence tending to prove the facts set out below,⁵ relied entirely on her theory, that the necessary facts were circumstantially proved. In short, having carefully thought out and advanced a theory which seemed suited to her needs, plaintiff, at the conclusion of her evidence, found herself confronted with the inherent fatal weakness of her case, the absence of any proof, either direct or circumstantial, sufficient under the controlling rule to take the case to the jury upon her claim that defendant was negligent in designing or manufacturing the car and that the death of her husband was proximately caused thereby, as her theory required it to have been.⁶

Without undertaking to match appellant's theories with theories of our own, for the simple reason that the question at issue, whether a jury case was made out, must be determined not by theorizing upon what might possibly have happened, but, by pointing, as it was appellant's duty to do, to evidence which, under settled principles, was sufficient on each essential issue to take her case to the jury, we think it sufficient to say that primarily and necessarily fatal to appellant's case is the fact that, while there was some evidence that at some time after submersion and withdrawal of the car from the river, the outside jacket tubing of the steering column was found in the condition demanded by plaintiff's theory, there was no evidence whatever as distinguished from theorizing, showing or tending to show that this was the condition of the car at any time before its submersion, none showing that the looseness claimed to exist was due to negligence of the defendant in designing or manufacturing the car. Indeed, all the evidence offered by plaintiff, as to the condition of the car and its entirely satisfactory performance before it went into the river, established the exact contrary to have been its condition and that plaintiff signally failed to carry the heavy burden imposed on her by law to offer evidence tending to show, not that the car might have been, but that it was, before it went into the river, in the same defective condition plaintiff claims it is now in.

In this state of the evidence, absent the proof which plaintiff was required to produce as a prime requisite to her contention that no change had occurred, the jury would have been put in the fantastic position of having to speculate or guess whether the condition, testified to as existing after the submersion, had manifested itself before the car went into the river and whether, if it had, the deceased had been aware of it. It is settled law that verdicts may not rest upon such mere guess or conjecture.⁷

The record standing as it does in this case, no jury, basing its findings upon the evidence, could say what were the physical facts relevant to this occurrence, for the evidence fails to show that what plaintiff theorizes as the cause and course of the decedent's death did so happen. Indeed, the proof is so shadowy, deals so with possibilities instead of probabilities, and the inferences plaintiff would draw from it: (1) that the mechanism was loose at the time the car went into the river; (2) that if it was loose, at that time, this looseness was due to the fault of appellee in designing or manufacturing the car; (3) that the death was caused and occurred as hypothesized by plaintiff; are so entirely dependent on and the fruit of imagination and mere conjecture as to demand a verdict for defendant.

In short, while in the absence of any evidence tending to prove the necessary facts, it is no more for this court than it was for the jury to say what theory, speculation or guess would be nearer to the facts as to where, when and how McNamara came to his death, it is certainly entirely clear that an inference that he met his death, as plaintiff theorizes that he did, is not established by any evidence having sufficient probative force to take the case to the jury.

While, as above stated, the evidence does not furnish a solid basis for any firm conclusion in this case, we think it not amiss to point out the misleading nature of theory in general and of plaintiff's theory in particular. This, as appellant's brief states it, is: that the car had been driven into the parking lot and parked facing and close to the bank of the river; that the driver, intending to back off of the parking lot onto the street, had put the car in reverse and, because of its defective condition, it had suddenly shot forward, "the wheels accelerating from a dead stop towards the river until the front wheels dropped off the side of the bank and, like a see-saw, lifted the rears off the ground", with the result testified to, that the car wound up in the middle of the river, upside down, with the rear of the car facing the bank. If the matter happened as appellant assumes it did, it does not seem possible for the car, going forward into the river, to have flipped over on its top and ended up with its rear to the bank. The reverse would have been true. No explanation is offered, nor do we think any could be, as to how or why, if the car had gone off head first, it could have landed in the river bottom side up with its rear to the bank. This is not to say that the evidence shows that the car must have backed off and that this would account for the indicator being in reverse. We do not think the...