Pierce v. Southern Pacific Transp. Co.

• Decision Date: 31 July 1987
• Docket Number: No. 85-6125,85-6125
• Citation: 823 F.2d 1366
• Parties: Bernice PIERCE, Plaintiff-Appellee, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1366

823 F.2d 1366

Bernice PIERCE, Plaintiff-Appellee, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellant.

No. 85-6125.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 1986.

Decided July 31, 1987.

Charlotte E. Costan, Burbank, Cal., R. Edward Pfiester, Jr., Los Angeles, Cal., for plaintiff-appellee.

Robert S. Wolfe, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, TANG and FLETCHER, Circuit Judges.

TANG, Circuit Judge:

Southern Pacific (SP) appeals from denial of its motion for judgment notwithstanding the verdict in a suit brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 51-60 (1982), by the widow and children of William Pierce, a deceased employee of the railroad. The suit alleged SP's negligence caused Pierce's death, which occurred two days after Pierce was involved in an automobile accident at the railroad yard. Pierce was suspended pending an investigation of an alleged Rule G violation (for drinking on the job). The jury found that SP committed no negligent acts to cause the accident, but found SP was negligent in making the Rule G accusation. SP sought relief based on a view that the jury's findings were inconsistent. We affirm.

BACKGROUND

At the time of his death on November 8, 1980, William Pierce was 46 years old and had been an employee of SP for 28 years. He died because of a heart attack brought on by stress-related aggravation of a congenital heart disease known as long-QT syndrome. Pierce was unaware of his heart condition.

The events which caused the stress and resultant heart attack occurred two days earlier. On November 6, 1980 Pierce reported to work for the graveyard shift at 11:00 p.m. He was told to take a company After the collision Pierce said he wanted to continue working but after a delay of approximately thirty minutes he was taken to a hospital where he received emergency room treatment for his cut lip. He refused to have it sutured and was given codeine for pain and an antibiotic. Pierce was picked up at the hospital at 1:30 a.m. and taken back to the SP administration office, although he asked to be taken home. Various company officials questioned him and Pierce filled out a written accident report. At 3:45 a.m. Pierce was officially "taken out of service" and sent home pending a formal investigation of a possible Rule G violation, which forbids alcohol consumption by employees while on duty. Pierce was upset and angry when he returned home, and two days later died of a heart attack.

car and go to verify the arrival at the yard of some inbound boxcars. At 11:30 p.m. Pierce collided with a repair cart known as a Kalamazoo. The two vehicles were not seriously damaged but the driver of the Kalamazoo injured his back in trying to jump out of the way of Pierce's approaching automobile, and Pierce hit his face on the steering wheel, causing a severe cut to his lip.

Pierce's wife and children brought suit under the FELA and the case was tried to a jury along with the suit by Calderon, the driver of the Kalamazoo. Much of the evidence at trial focused on the allegation that Pierce had been drinking prior to the accident. Calderon, who came on shift at the same time as Pierce, said he did not think Pierce had been drinking before work, and members of Pierce's family who were with him until he went to work testified he had nothing to drink. Four witnesses who saw Pierce after the accident testified that they smelled alcohol, but none of the four had included that fact in their written reports of the accident. The physician who treated Pierce in the emergency room said there was no indication of alcohol use, and that if there had been any such signs he would not have prescribed codeine.

At the close of the evidence SP did not move for a directed verdict. The jury was given separate verdict forms for the Calderon and Pierce cases, and SP offered no objections to the verdict forms. The Pierce form included ten interrogatories, ¹ which identified various grounds on which SP might have been negligent. The jury found that SP was not negligent in any way that contributed to the accident, and that the accident itself was not a cause of Mr. Pierce's death. However, the jury also found that SP was negligent after the accident, in that Mr. Pierce suffered mental anguish from the accusation of a Rule G violation and being pulled out of service. The jury assessed damages at $425,222 but found Pierce 75% responsible for his injury and death.

After the jury was discharged, SP filed a motion for a judgment notwithstanding the verdict, (JNOV) Fed.R.Civ.P. 50(b), a motion to alter or amend the judgment, Fed.R.Civ.P. 59(e) or, alternatively, for relief from judgment, Fed.R.Civ.P. 60(b). The district court denied the motions.

ANALYSIS

SP asserts that it is entitled to have judgment entered in its favor on the ground that the jury's answers are fatally inconsistent or that its post-accident conduct was reasonable as a matter of law.

Standard of Review

We review the propriety of a JNOV under the same standard that is applied by the district court. A JNOV is proper when the evidence permits only one reasonable conclusion as to the verdict. We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. A JNOV is improper if reasonable minds could differ over the verdict.

Peterson v. Kennedy, 771 F.2d 1244, 1252 (9th Cir.1985) (citations omitted), cert. denied, --- U.S. ----, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). Denial of a JNOV is inappropriate and must be reversed when it is clear that the evidence and its inferences cannot reasonably support judgment in favor of the opposing party. Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1014 (9th Cir.1985), cert. denied, 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986).

Procedural Bar to JNOV

As a threshold question we must determine whether SP waived its right to move for JNOV by failing to move for a directed verdict at the close of the evidence. Fed.R.Civ.P. 50(b); Farley Transp. Co. v. Santa Fe Transp. Co., 786 F.2d 1342, 1345-46 (9th Cir.1985); 5A J. Moore & J. Lucas, Moore's Federal Practice p 50.08 (1986).

The rule that a JNOV may not be granted unless the moving party moved for a directed verdict at the close of all the evidence is a strict one in cases in which judgment is entered upon a general verdict. The rationale is clearly to prevent a review of the sufficiency of the evidence when the moving party has not given notice, through a motion for a directed verdict, of objections to the legal sufficiencies of the evidence while there is still an opportunity for the opposing party to cure any defects in proof. Farley Transp. Co., 786 F.2d at 1346.

In this case judgment was entered in accordance with a special verdict form prescribed by Fed.R.Civ.P. 49(a), and the motion for JNOV did not allege defects in proof, but rather inconsistencies in the answers given in the special verdict. When a special verdict does not support a judgment a reviewing court may make an exception to the Rule 50(b) requirement of a motion for directed verdict as a prerequisite to a motion for JNOV. See, e.g., Traders & Gen. Ins. Co. v. Mallitz, 315 F.2d 171, 175 (5th Cir.1963) (JNOV not barred by failure to move for directed verdict when the jury's special verdict does not support the judgment). Similarly, when a jury's answers are irreconcilably inconsistent, a reviewing court may review whether the answers support the judgment even in the absence of either a motion for directed verdict or a motion for JNOV. See Fugitt v. Jones, 549 F.2d 1001, 1004 (5th Cir.1977). The Mallitz exception does not apply here, since the jury found SP employees negligent in their post-accident conduct, thus supporting the judgment of liability. But we believe that, just as a motion for directed verdict is not required to preserve the question whether a judgment is supported by the jury's special verdict, a motion for directed verdict need not be a condition precedent for a motion for JNOV when the challenge is to the consistency of the answers under a Rule 49(a) special verdict, and not to the sufficiency of evidence supporting a general verdict.

SP argues the jury's answers are fatally inconsistent so that the district court should have granted its motion for JNOV even without a prior motion for directed verdict. Pierce argues that objections to a jury's verdicts--e.g., as inconsistent, unclear or ambiguous--must be made before the jury is discharged. 5A J. Moore & J. Lucas, supra, p 49.04 at 49-45. This rule applies to general verdicts under Fed.R.Civ.P. 49(b). Special verdicts, such as the one in this case, are governed by Rule 49(a), which does not require objections before discharge of the jury. See, e.g. Malley-Duff & Associates, Inc. v. Crown Life Ins. Co., 734 F.2d 133, 144-45 (3d Cir.) (no decision of this court has precluded appellate review of inconsistencies under a Rule 49(a) verdict in the absence of objection prior to discharge), cert. denied, 469 U.S. 1072, 105 S.Ct. 564, 83 L.Ed.2d 505 (1984); Mercer v. Long Mfg. N.C., Inc., 671 F.2d 946, 947-48 (5th Cir.1982) (inconsistencies in special verdicts not waived if not raised prior to release of the jury).

Reconciliation of Conflicting Findings

The court has a duty to reconcile the jury's special verdict responses on any reasonable theory consistent with the evidence. Gallick v. Baltimore & O. R.R., 372 U.S. 108, 119-22, 83 S.Ct. 659, 666-67, 9 L.Ed.2d 618 (1963); Bourque v. Diamond M. Drilling Co., 623 F.2d 351, 353 (5th Cir.1980) (the seventh amendment right to a jury trial requires validation of verdicts if at all possible); 9 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 2513 at 528-29 (1971).

The duty to reconcile inconsistencies is particularly...