Smith v. Southeastern Stages, Inc.

• Citation: 479 F. Supp. 593
• Decision Date: 29 March 1977
• Docket Number: Civ. No. C75-1425A.
• Parties: Emily Lindsey SMITH and Robert Smith v. SOUTHEASTERN STAGES, INC., Edward Sam Carder, the Continental Insurance Company, Georgia Kraft Company, and Guy Richard Smith.
• Court: U.S. District Court — Northern District of Georgia

479 F. Supp. 593

Emily Lindsey SMITH and Robert Smith v. SOUTHEASTERN STAGES, INC., Edward Sam Carder, the Continental Insurance Company, Georgia Kraft Company, and Guy Richard Smith.

Civ. No. C75-1425A.

United States District Court, N. D. Georgia, Atlanta Division.

March 29, 1977.

George W. Fryhofer, Waynesboro, Ga., Claude R. Ross and Baxter H. Finch, Ross & Finch, Atlanta, Ga., for plaintiffs.

Warner S. Currie and Samuel P. Pierce, Jr., Swift, Currie, McGhee & Hiers, Atlanta, Ga., for Southeastern Stages, Continental Ins. Co. and Edward Sam Carder.

A. Paul Cadenhead and James C. Gaulden, Jr., Nall, Miller & Cadenhead, Atlanta, Ga., for Georgia Kraft Co. and Guy Richard Smith.

John T. Marshall, of Powell, Goldstein, Frazer & Murphy, Ben L. Weinberg, Jr., of Long, Weinberg, Ansley & Wheeler, Atlanta, Ga., for defendants.

ORDER

O'KELLEY, District Judge.

This action is presently before the court on the following motions: (1) a motion for judgment notwithstanding the verdict filed on behalf of defendants Georgia Kraft Company and Guy Richard Smith hereinafter referred to as the Georgia Kraft defendants; (2) the Georgia Kraft defendants' alternative motion for a new trial; (3) a motion for a new trial filed on behalf of defendants Southeastern Stages, Inc., Continental Insurance Company, and Edward Sam Carder; and (4) the plaintiffs' motion requesting the court to strike from the latter motion for a new trial the report of Dr. Albert H. Clark, a consulting economist. By this order, the court will resolve all pending motions.

The affidavit at which the plaintiffs' motion to strike is directed was submitted by the Southeastern Stages defendants to support their contention that the verdict rendered in this case is excessive. In their motion to strike, the plaintiffs advance numerous arguments in support of their position that the court's consideration of Dr. Clark's affidavit is improper. The difficulty with the plaintiffs' motion, however, is that a motion to strike is only appropriately addressed toward matters contained in the pleadings, Fed.R.Civ.P. 12(f), and affidavits submitted in support of a motion are clearly not within that category. See Fed.R.Civ.P. 7. Regardless of the practice followed in other forums, this court does not sanction the use of a rule 12(f) motion for the advancement of objections to an affidavit filed in support of a motion. See Wright and Miller, Federal Practice & Procedure § 1380. It is sufficient for the party opposing the motion to register its objection to the movant's affidavits by way of the material submitted in opposition to the motion. The court will then implicitly, if not explicitly, rule upon these objections in its consideration of the motion. Accordingly, the plaintiffs' motion to strike is hereby denied.

In support of their motion for judgment notwithstanding the verdict, the Georgia Kraft defendants contend that the evidence adduced at trial is insufficient to support the jury's findings that defendant Smith was grossly negligent or its finding that this negligence proximately caused the plaintiff's injuries.¹ When faced with questions concerning the sufficiency of evidence on either a motion for directed verdict or a motion for judgment notwithstanding the verdict, it is well settled in this circuit that

the Court should consider all of the evidence—not just that evidence which supports the non-mover's case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. . . . There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (footnotes omitted). Accord, Morrison v. Frito-Lay, Inc., 546 F.2d 154 (5th Cir. 1977).

Evaluating the Georgia Kraft defendants' contentions in light of this standard, the court concludes that there is "substantial evidence" to support both of the challenged findings. Supportive of the jury's finding that defendant Smith was grossly negligent is the evidence of Mr. Smith's failure to give a directional signal prior to making a left-hand turn and his failure to keep a proper lookout for other traffic on the highway. Under Georgia law the combination of such circumstances is sufficient to permit the jury to find that the defendant was guilty of gross negligence. See Rigdon v. Williams, 132 Ga. App. 176, 207 S.E.2d 591 (1974); Clements v. Riser, 123 Ga.App. 595, 182 S.E.2d 169 (1971); Parker v. Johnson, 97 Ga.App. 261, 102 S.E.2d 917 (1958). Concerning the Georgia Kraft defendants' assertion that the evidence is insufficient to support the jury's finding that defendant Smith's negligence was the proximate cause of the plaintiff Emily Smith's injuries, it must be emphasized initially that in neither the motion nor the briefs submitted in support thereof do these defendants specify the basis of their argument. The court assumes, however, that the basis is that the negligence of defendant Carder, the driver of the Southeastern Stages bus, amounted to an independent, intervening cause which broke the chain of causation linking the Georgia Kraft defendants to the plaintiff's injuries. In order for this argument to succeed, however, the movants must show that, as a matter of law, Carder's negligence was unforeseeable. See Southern Ry. v. Webb, 116 Ga. 152, 42 S.E. 395 (1902); McDaniel v. Brown, 61 Ga.App. 243, 6 S.E.2d 382 (1939). This they clearly cannot do. Accordingly, the motion for judgment notwithstanding the verdict filed on behalf of the Georgia Kraft defendants is hereby denied.

Both groups of defendants have filed motions for a new trial pursuant to Fed.R. Civ.P. 59, which provides in pertinent part:

A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States . . ..

It is well settled that the granting of a new trial is a "matter resting within the sound discretion of the trial court exercised with regard to what is right and in the interest of justice . . .." Complete Auto Transit v. Floyd, 249 F.2d 396, 399 (5th Cir. 1957). It is in light of this standard, then, that the court must evaluate the grounds advanced by the defendants in support of their motions. Before turning to an examination of those contentions, however, the court must point out that since both motions for a new trial present certain grounds which are related, the discussion of the motions will be organized according to the grounds offered in support thereof rather than on the basis of the parties raising those grounds.

Two of the grounds offered in support of the motions for a new trial involve alleged errors which were committed by the court in resolving certain evidentiary questions. First, the Southeastern Stages defendants contend that the court erred in refusing to admit into evidence the police report prepared by Mr. Robert Bates, the Georgia State Highway Patrol trooper who investigated the accident. Alternatively, these defendants argue that at least that portion of the report containing a diagram of the accident should have been admitted and the court's refusal to do so was error. Second, both groups of defendants allege that the court committed prejudicial error in its ruling on the admissibility of certain portions of a video taped experiment. The Georgia Kraft defendants contend that the court erred in admitting that portion of the video tape which demonstrated the moving interrelationships between the two vehicles involved in the accident as well as that portion which demonstrated the view through the inside rear view mirror of the truck driven by the defendant Smith. The Southeastern Stages defendants, on the other hand, assert that the court erred in not admitting all of the video taped experiment. Prior to making both of the rulings challenged by the defendants, the court considered evidence which was tendered in light of the applicable legal standards. In their motions for a new trial the defendants have not raised any arguments relating to these evidentiary questions which were not previously considered by the court. Therefore, the court is not inclined to reverse its earlier rulings on these questions. In any event, even if the court is incorrect in these evidentiary rulings, it finds that in light of the other evidence adduced at the trial and the instructions given to the jury regarding the video taped experiment, the errors are not prejudicial and, therefore, constitute an improper basis upon which to grant a new trial. See Midcontinent Broadcasting Co. v. North Central Airlines, Inc., 471 F.2d 357 (8th Cir. 1973); Seven Provinces Insurance Co. v. Commerce & Industry Insurance Co., 65 F.R.D. 674 (W.D.Mo.1975).

Five of the grounds which the defendants offer in support of their motions for a new trial concern alleged errors in the court's charge to the jury. First, the Southeastern Stages defendants contend that the court erred in failing to charge the concept of intervening proximate cause. The difficulty with this argument, however, is that the court's charge on proximate cause in this case did include reference to the concept...