Merritt v. Interstate Transit Lines

• Decision Date: 28 December 1948
• Docket Number: No. 13787.,13787.
• Citation: 171 F.2d 605
• Parties: MERRITT v. INTERSTATE TRANSIT LINES.
• Court: U.S. Court of Appeals — Eighth Circuit

171 F.2d 605 (1948)

MERRITT v. INTERSTATE TRANSIT LINES.

No. 13787.

United States Court of Appeals Eighth Circuit.

December 28, 1948.

William J. Hotz, Jr., of Omaha, Neb. (Hotz & Hotz, William J. Hotz and William F. Dalton, all of Omaha, Neb., on the brief), for appellant.

R.B. Hamer, of Omaha, Neb. (T. F. Hamer, of Omaha, Neb., and Addison G. Kistle, of Council Bluffs, Iowa, on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.

GARDNER, Chief Judge.

This was an action brought by appellant to recover damages for personal injuries alleged to have been caused by the negligence of appellee while plaintiff was being transported by defendant as a passenger on its bus. The parties will be referred to as they were designated in the trial court.

Plaintiff, in his complaint, alleged that defendant at the times alleged was a public carrier of passengers operating a bus line from Council Bluffs, Iowa, to Iowa City, Iowa, and points east; that while he was a fare-paying passenger on defendant's bus he was injured through the negligence of defendant in that while he was occupying a seat nearest the aisle on defendant's eastbound bus, "a suit case which had been placed in a rack above plaintiff's head fell from its position and struck plaintiff on the face, head, nose and right hand inflicting the injuries hereinafter set forth;" that he was free from contributory negligence; that he had not placed the suit case in the rack above his seat; that he believed that the bus driver had competently supervised the loading of baggage and that "from all appearances to the plaintiff the suit case, being the property of other passengers, was securely located with other baggage in said baggage rack in said bus;" that the suit case had been permitted by the operator of the bus to be placed in an insecure manner in the rack above plaintiff and that the operator either knew or should have known this fact. For the injuries received and which were described in the complaint plaintiff asked judgment for $10,595.

In its answer defendant admitted its corporate existence under the laws of the State of Nebraska; that it was a public carrier of passengers and that plaintiff, at the time mentioned in his complaint, was a passenger on one of its busses. It denied generally all other allegations of the complaint and specifically denied that it was negligent in any manner, or that plaintiff sustained any injury by reason of its negligence.

The case was tried to the court without a jury. Both the plaintiff and the defendant offered evidence. The court handed down a memorandum opinion, following which, or as a part of which, it made findings of fact and conclusions of law determining on their merits all the issues in favor of the defendant. From the judgment entered in conformity with the court's findings and conclusions, plaintiff appeals.

Generally speaking, plaintiff seeks reversal on the ground that the findings do not sustain the judgment entered. None of the evidence is contained in the record but the appeal is based solely on the judgment roll. In his statement of points to be argued it is contended, (1) that a carrier of passengers is required to exercise a high degree of care, and if it has notice, actual or constructive, of stowed baggage in a position which could become dangerous, it is liable to the passengers for injuries resulting from an improper stowage; (2) a carrier is charged with notice of the presence of improperly packed luggage within a reasonable time after placement of baggage in the rack by some one other than the driver; (3) a carrier charged with notice that a large suit case has been brought into a bus by a passenger, has the responsibility of promptly inspecting such baggage when placed over the heads of other passengers; (4) when baggage placed in an overhead rack of a bus by a passenger falls and causes injury to another passenger, and such rack is shown to be under the exclusive control of defendant's bus driver, and the fall of the baggage is such that in the ordinary course of travel would not have happened had the driver seen to it that the baggage was placed so that it would not fall in the ordinary course of travel, such facts give rise to an inference or presumption of negligence under the doctrine of res ipsa loquitur.

The appeal, as has been observed, is based solely upon the judgment roll, no evidence being contained in the record. The trial court made specific findings of fact and conclusions of law as follows:

"Facts

"1st. I find that the plaintiff has failed to establish any negligence on the part of the defendant or its employees which caused a suit case to fall and strike the plaintiff on the head while he was a passenger on defendant's bus.

"2nd. I find that there is no evidence that the employees of the defendant knew or in the exercise of ordinary care should have known that the suit case was in a perilous position or situation, if it was in such a situation or position, that it might fall on the head of a passenger.

"3rd. That the evidence fails to show that any negligence on the part of the driver of the bus in failing to inspect the baggage any more that he did inspect it was the proximate cause of any injury to the plaintiff.

"4th. I find that plaintiff has failed to establish by the evidence a cause of action against the defendant.

"And as a

"Conclusion of Law

"I find —

"That Plaintiff's petition should be dismissed upon its merits."

In the court's memorandum opinion is a recital of certain alleged facts and it is somewhat difficult to determine whether they are stated as such or whether they are stated as the testimony or claim of the plaintiff. It is the contention of plaintiff that the statements or recitals contained in the court's memorandum opinion may be considered as findings of fact, though not designated as such. On the other hand, counsel for defendant contend that the findings of fact are presumptively correct and are conclusive on appeal when the evidence upon which the findings are based is not presented by the record, and that the opinion of the court cannot be considered as taking the place of the evidence presented to the District Court.

The findings of the trial court are presumptively correct and may not be set side on appeal unless clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. This rule has recently been amended and as amended it includes, among other things, the following: "If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein." In the instant case there are embodied in the opinion specific findings and conclusions and this gives rise to the question whether, notwithstanding the specific statement of the court's findings and conclusions, we may, nevertheless, look to the recitals or statements in other parts of his opinion. Assuming without deciding, that we may refer to this memorandum insofar as it purports to relate facts, the recitals may be summarized as follows:

Plaintiff was a passenger on an interstate bus owned by...