Safeway Stores v. Fannan

Decision Date11 September 1962
Docket NumberNo. 17315.,17315.
Citation308 F.2d 94
PartiesSAFEWAY STORES, Appellant, v. Marvin FANNAN, Appellee. Marvin FANNAN, Appellant, v. SAFEWAY STORES, Appellee.
CourtU.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.

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.

The record is brief and shows what next occurred: —

"The Court: "* * * I\'m content to say for the record in this case I have never seen a plainer case that was more speculative in the causation of the accident than this case. I grant the motion for dismissal.
"Mr. Wilson: Plaintiff\'s counsel I take exception to the Court\'s ruling and order a transcript of the testimony.
"The Court: You certainly may have it.
"Mr. Tooze: Defendant\'s counsel If your Honor please, I have already furnished the Court with a form of verdict. I think it will probably need to be amended.
"The Court: This is an order of dismissal.
"Mr. Tooze: I see.
"The Court: Rule 41 provides that after the plaintiff has completed presentation of his evidence the defendant, without waiving his right to offer evidence in the event of the motion not granted, may move for dismissal on the grounds that upon the facts and the law the plaintiff has shown no right to relief. That\'s the way I feel about it. * * *"

At this point the jury returned to the court room, and the following proceedings occurred:

"The Court: Members of the jury, you have been called today and selected to sit on a case and try the case before the Court. * * * During your absence the defendant has made a motion pursuant to the Rules of Federal Civil Procedure for an order of dismissal on the grounds and for the reason that the plaintiff\'s case, taking it as it now stands, shows no grounds in either law or fact that relief could be granted."

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:

"The elements of plaintiff\'s prima facie case, or of defendant\'s defense, must be determined by applicable local law in a case involving only nonfederal matters. But the sufficiency of certain evidence to raise a question of fact for the jury, or for the court where trial is without jury, should not be controlled by state law." 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:

"An invitee who is injured by slipping on a foreign substance on the floor or stairs of business property must, in order to recover from the occupant having control of said property, show either:
"(a) that the substance was placed there by the occupant, or
"(b) that the occupant knew that the substance was there and failed to use reasonable diligence to remove it, or
"(c) that the foreign substance had been there for such a length of time that the occupant should, by the exercise of reasonable diligence, have discovered and removed it." 327 P.2d p. 1111.

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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