Moran v. Raymond Corporation

• Decision Date: 14 September 1973
• Docket Number: No. 72-1499.,72-1499.
• Citation: 484 F.2d 1008
• Parties: Juan MORAN, Plaintiff-Appellee, v. The RAYMOND CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

484 F.2d 1008 (1973)

Juan MORAN, Plaintiff-Appellee, v. The RAYMOND CORPORATION, Defendant-Appellant.

No. 72-1499.

United States Court of Appeals, Seventh Circuit.

Argued April 26, 1973.

Decided September 14, 1973.

Jerome H. Torshen, Robert A. Skirnick, Robert J. Hourigan, Chicago, Ill., for defendant-appellant.

Charles J. Reed, Chicago, Ill., for plaintiff-appellee.

Before MOORE, Senior Circuit Judge,^* and CUMMINGS and PELL, Circuit Judges.

PELL, Circuit Judge.

Defendant, The Raymond Corporation (Raymond), appeals from a judgment for $250,000.00 entered on a jury verdict in favor of plaintiff, Juan Moran, on his complaint for personal injuries he had allegedly received while he was an employee of Central Steel and Wire Company (Central).

Raymond manufactured a lift truck, known as a sideloader, which was designed to operate in narrow aisles. It differs from the standard fork lift truck, on which the load is carried fully beyond the front wheels in that, as the name sideloader indicates, the load-lifter is located on one side of the equipment and extends equidistant over the front and rear sets of wheels. At one end of the equipment there is located an operator's cage with the controls inside. Moran had operated a sideloader at Central for approximately three months. On the night in question, he was in the process of returning a tray to a rack approximately eight or nine feet above the ground when some wire rods on the tray slipped therefrom. In attempting to correct this situation, Moran left the operator's cage and first stood on the movable forks and eventually on a platform below the forks. Still not achieving the desired result, he attempted to lower the forks but rather than returning to the cage and while standing on the platform on the lift side of the equipment, he reached through an opening into the cage and pulled the control lever to lower the forks. Although he tried to bring his hand back quickly, it became stuck because of a bandage he had on his wrist. When the cross bar came down with a shearing action, Moran's right arm was seriously injured.

Moran's complaint was based on both negligence and strict liability theories. Among Raymond's defenses were that the lift truck was not defectively manufactured (and therefore could not be the basis of a strict liability in tort claim), that Moran had assumed the risk, and that Moran had misused the sideloader so as to bar recovery as a matter of law. The jury rejected all of the defenses and answered special interrogatories finding no assumption of the risk or misuse.

Initially we must decide whether or not we can review the sufficiency of the evidence in this case. Defendant moved for a directed verdict at the close of plaintiff's case and the district judge took the motion under advisement. There is no indication in the record that the motion was renewed in writing at the time the presentation of the evidence was completed. Rule 50, Fed.R.Civ.P., provides in part that "a party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made." "Nevertheless, the courts have adhered to the longstanding rule that the introduction of evidence at that point constitutes a waiver of the objection to the sufficiency of the evidence unless the motion is renewed at the time when all the evidence is in. What this means is that after the moving party has offered evidence: (1) the motion cannot serve as a necessary predicate for a motion for judgment under Rule 50(b); and (2) it cannot serve as the basis for attacking the sufficiency of the evidence in the appellate court. And this doctrine would appear to be applicable though the motion at the close of the opponent's case was reserved by the court rather than denied." 5A Moore, Federal Practice ¶ 50.051, at 2341-2 (2d ed.). (Footnotes omitted.)

9 Wright & Miller, Federal Practice and Procedure: Civil § 2536, at 593 (1971), states basically the same doctrine as follows:

"It is thoroughly established that the sufficiency of the evidence is not reviewable on appeal unless a motion for directed verdict was made in the trial court. Indeed a motion at the close of plaintiff\'s case will not do unless it is renewed at the close of all the evidence nor will the appellate court review the sufficiency of the evidence if the trial court has denied a motion that does not state specific grounds." (Footnotes omitted.)¹

In an affidavit filed with his reply brief in this court, counsel for Raymond states that during an in-chambers but off-the-record conference with the district court judge he informed the judge that he had a motion for a directed verdict at the close of all of the evidence that he would like to have filed. Judge Napoli assertedly replied that the ruling on that motion would be the same as the ruling he made concerning the earlier motion for directed verdict, namely, that he would take it under advisement and that the ultimate ruling on both motions would be the same. "Therefore, I did not file a written Motion for Directed Verdict at the close of all evidence." Judge Napoli, however, is deceased and in a counter-affidavit counsel for the plaintiff denies he was present at the purported conversation in chambers with the judge relating to a motion for a directed verdict at the close of all of the evidence. Defense counsel in his affidavit had indicated he was not certain whether plaintiff's counsel had heard the colloquy concerning a possible final motion for directed verdict.

The issue of whether we should consider this appeal as though a motion for directed verdict had been made at the close of all of the evidence becomes a close question because neither in argument on the defendant's post-trial motion, nor at any other time in the district court, did the plaintiff raise the question of lack of filing of this motion. Instead, at the time of the argument in the district court, plaintiff's counsel stated:

"Under the applicable rules, the grounds for seeking a judgment notwithstanding the verdict must be identical and not expansive over theirs which were asserted in the motion for directed verdict at the close of the plaintiff\'s case, at the close of all the evidence, and upon which the Court has ruled on the 11th of April of this year."

We do not view favorably the raising of an issue, particularly a technical one, for the first time on appeal. On the other hand, it is incumbent on counsel to make the record in the district court as to issues he wishes to present on appeal.

Raymond relies on two cases to support its contention that we are not foreclosed from examining the evidence in this case. In United States v. 353 Cases, 247 F.2d 473 (8th Cir. 1957), the Government had brought a condemnation action against allegedly misbranded mineral water. At the close of the defendant's case the Government moved for a directed verdict, which was not granted. The Government called two rebuttal witnesses and the claimants called one surrebuttal witness. None of these witnesses testified concerning the grounds for the motion for a directed verdict. The Government failed to renew the motion at the close of all of the evidence and the district court subsequently denied judgment notwithstanding the verdict relying, in part, on the failure to renew the motion for a directed verdict. The Eighth Circuit reversed, stating:

"We think that as a practical matter the Government did all that was necessary to preserve for review the question whether it was entitled to a directed verdict. This Court, moreover, in the public interest and to guard against injustice, may, of its own motion, notice errors which have not been properly preserved for review, if such errors are obvious, or if they otherwise seriously affect the fairness and integrity of the judicial proceedings." 247 F.2d at 477.

While not unmindful of the pragmatic values reflected in the above language, we also note that the exception carved out is most narrowly stated and is certainly based in part on the fact that the rebuttal witnesses testified only on collateral issues.

The second case on which Raymond relies is Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968 (1st Cir. 1969). The case is somewhat similar to the one before us. The defendants had moved for a directed verdict at the close of the plaintiff's case and the district court had reserved its ruling. Defendants then submitted eight exhibits, none of which dealt with the issue of negligence or contributory negligence, but failed to renew their motions for directed verdicts. The court held that the defendants had not waived their right to move for judgment notwithstanding the verdict. The court relied on two factors. First, the district court itself showed that it felt that the defendants had preserved their point:

"In a sense the court may well have led counsel reasonably to believe that all had been done that was necessary. . . . This factor alone would be of no avail to appellants had the evidence subsequently presented been previously unrevealed, lengthy, or relevant to the issues raised by the motions for a directed verdict. Citation omitted. But this part of the trial occupying only two pages of transcript and involving no more than a few minutes, held no surprises." 409 F.2d at 971-972.

The case before us is similar to McAn to the extent that there may have been implied assurances by the district court that the record was preserved. However, the defendant in the present case did introduce more than an inconsequential amount of testimony following its motion for a directed verdict at the close of the plaintiff's case. Six witnesses, including the plaintiff as an adverse witness, testified. Their testimony covers 110 pages of the transcript.

In the First Circuit's own construction of McAn in Gillentine v....