Safeway Stores v. Fannan
Decision Date | 11 September 1962 |
Docket Number | No. 17315.,17315. |
Citation | 308 F.2d 94 |
Parties | SAFEWAY STORES, Appellant, v. Marvin FANNAN, Appellee. Marvin FANNAN, Appellant, v. SAFEWAY STORES, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Tooze, Powers, Kerr, Tooze & Morrell, Lamar Tooze and Edwin J. Peterson, Portland, Or., for appellant-appellee Safeway Stores, Inc.
Pozzi, Levin & Wilson and Philip A. Levin, Portland, Or., for appellee-appellant Marvin Fannan.
Before CHAMBERS, Chief Judge, DUNIWAY, Circuit Judge, and JAMES M. CARTER, District Judge.
This case presents the question as to whether or not in a situation where a defendant has made a motion for a directed verdict, the Court may, on its own motion, grant a dismissal without prejudice. There is also presented the question as to whether or not the plaintiff's proof was sufficient to entitle him to go to the jury.
Cross appeals are presented. Marvin Fannan, plaintiff below, appeals from an order of dismissal without prejudice under Rule 41(b), F.R.Civ.P. 28 U.S.C.A.1 Safeway Stores Inc., defendant below, appeals from the refusal of the trial court to grant its motion for a directed verdict under Rule 50, F.R.Civ.P.2
Fannan, hereinafter called plaintiff, brought a tort action against Safeway Stores Incorporated, hereinafter called defendant, in the District Court, based on diversity of citizenship and a controversy exceeding $10,000.00.
The case was tried to a jury. The following facts appear from the record. On Monday morning, November 30, 1959, the plaintiff, accompanied by his sister, entered the store of the defendant. Plaintiff and his sister were the first customers to enter the store on the day of the accident.
Plaintiff, preceded by his sister, was walking down an aisle in the store, when he stepped on a pencil, slipped and fell. As a result of this fall the plaintiff injured his left leg.
No testimony was presented by the plaintiff to explain the presence of the pencil on the floor of the defendant's store.
After the plaintiff rested, the defendant in the absence of the jury, moved the court, under Rule 50, F.R.Civ.P., for an order directing the jury to return a verdict in favor of the defendant.
The basis of the defendant's motion was that, (1) there was no evidence tending to prove that the defendant was negligent, (2) there was no evidence tending to prove or proving that any act of the defendant was the proximate cause of the injury received by the plaintiff, and (3) that as a matter of law the plaintiff was contributorily negligent. The motion was then argued by both parties.
At this point the jury returned to the court room, and the following proceedings occurred:
The record does not show it, but there was set forth in the briefs and conceded at oral argument, that the following occurred: — The attorney for the defendant Safeway, presented a written order for dismissal under Rule 41(b), F.R. Civ.P. It did not contain the words, "without prejudice" and had it been signed as presented would have been an adjudication on the merits. The trial judge prior to signing the order, added "without prejudice". Thus, under Rule 41(b), F.R.Civ.P., the order did not become an adjudication on the merits.
Defendant moved to amend the judgment by striking therefrom the words "without prejudice". The motion was denied. Defendant appeals "from such part only of the judgment of dismissal * * * as dismissed this action without prejudice and also from the order denying defendant's motion to amend the said judgment of dismissal * * *". Plaintiff appeals from the judgment of dismissal.
(1) Was plaintiff entitled to have his case go to the jury?
In Moore's Federal Practice, Vol. 5, Sec. 38.10, p. 102, it is stated that:
Emphasis added
This rule is followed in the Ninth Circuit,3 and in the Fourth, Fifth and Tenth Circuits.4
We think the Supreme Court in Byrd v. Blue Ridge Rural Elec. Cooperative Inc., 1958 356 U.S. 525, 533-540, 78 S.Ct. 893, 2 L.Ed.2d 953, in a different factual and procedural situation has reached the same result.
But as to elements of plaintiff's cause of action, in this diversity case, in our examination of the facts, we must apply the substantive law of Oregon, Erie R. Co. v. Tompkins, 1938 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.
Thus procedurally, the question of the quantum of proof necessary to sustain a cause of action, and thus justify a denial of a motion for a directed verdict or motion for dismissal must be decided on the basis of federal and not state law. But, whether the proof shows the necessary elements of a cause of action is a question to be determined by state law.
In Cowden v. Earley, 1958, 214 Or. 384, 327 P.2d 1109, the Supreme Court of Oregon stated the law concerning debris cases as follows:
There was no evidence presented by the plaintiff, from which it could be concluded, or inferred, that the defendant, or its agents placed the pencil on the floor of the store. Nor was there any evidence which would show, or which could be inferred, that the defendant or its agents, had knowledge that this particular pencil was on the floor.
Plaintiff made a showing that he was the first customer in the store of the defendant. Thus, plaintiff attempts to create the inference that the pencil must have been on the floor for a period of time and therefore the defendant should have discovered and removed it.
But there must be a showing as to the length of time that the pencil was on the floor. Mere speculation must not be allowed to take the place of probative facts. There was no proof as to when the floor was last swept or even whether the store was open on Sunday, the day preceding. The evidence of the plaintiff leads to mere speculation as to the length of time that the pencil was on the floor of the defendant's store.
It would appear that in those debris cases in which the plaintiff has recovered, there has been evidence presented linking the defendant, or its agents, to the debris, or in the alternative evidence showing that the debris was on the floor for an unreasonable length of time.5
The plaintiff failed in his proof as to the elements of his claimed cause of action, Cowden v. Earley, (supra). He was not entitled to have his case go to the jury. We do not reach the question as to quantum of proof under the Federal Rule.
(2) Did the trial court err in ordering the dismissal "without prejudice" and in refusing to amend the judgment of dismissal?
Rule 59(e), F.R.Civ.P., provides for a motion to alter or amend a judgment. Although orders granting a motion to modify or amend a judgment are appealable, Cyc. of Federal Procedure, 3rd ed., Reviewable Judgments, Sec. 57.61 p. 163, there seems to be a question as to whether orders denying such motions are appealable. In Walker v. Bank of America, 9 Cir., 1959 268 F.2d 16; cert. den. 361 U.S. 903, 80 S.Ct. 211, 4 L.Ed.2d 158, this court held that an order denying a motion to amend a judgment under Rule 59(e) "is appealable, but only on the question of whether there has been a manifest abuse of discretion," (268 F. 2d p. 25.)
There is no question but the appeal is timely on either ground.
We think that the real significance of the motion to amend and the order thereon, shows that the trial court was aware of the effect of his action and that the dismissal without prejudice, instead of a directed verdict, was not done inadvertently.
There is thus squarely presented the question as to whether a trial court may, after a motion for directed verdict has been made, in substance make on its own volition, a motion for dismissal and grant the same.
We note that Rule 41(b), F.R.Civ. P., contemplates, in...
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