Steel v. Downs

• Decision Date: 05 March 1971
• Docket Number: No. 20448.,20448.
• Citation: 438 F.2d 310
• Parties: Teresa Johnson STEEL, Appellant, v. Donald DOWNS and Meva Corporation, a Foreign Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

438 F.2d 310 (1971)

Teresa Johnson STEEL, Appellant, v. Donald DOWNS and Meva Corporation, a Foreign Corporation, Appellees.

No. 20448.

United States Court of Appeals, Eighth Circuit.

January 21, 1971.

Rehearing Denied March 5, 1971.

Lowell A. O'Grady, Grand Forks, N. D., for appellant.

Robert Vaaler, Stokes, Vaaler, Gillig, Warcup & Woutat, Grand Forks, N. D., for appellees.

Before MATTHES, Chief Judge, LAY, Circuit Judge, and REGISTER, Chief District Judge.

PER CURIAM.

This is a diversity personal injury action arising out of a motor vehicle accident which occurred between one o'clock and two o'clock a. m., near Larimore, North Dakota, on July 2, 1965. Plaintiff, Teresa Johnson Steel, was a guest passenger in a pickup truck driven by the defendant Donald Downs. The truck had been leased by the defendant Meva Corporation and, at the time, Downs was an employee of Meva and concededly acting within the course and scope of his employment. Federal jurisdiction is derived from Title 28, Sec. 1332, U.S.C.A. (diversity of citizenship and amount in controversy).

The case was tried to a jury, the Honorable Ronald N. Davies presiding. After plaintiff had submitted her evidence and rested, the appellees moved for a directed verdict, which was denied. The appellees then presented their evidence; there was no rebuttal, and after all parties had rested, the appellees renewed their motion for a directed verdict. The motion was granted. The trial court appointed a member of the jury as foreman and directed the entry of the verdict in favor of the defendants and against the plaintiff. The verdict was duly entered, following which judgment on the verdict was entered dismissing the action. This appeal was taken from the order granting the motion for directed verdict and from the verdict and judgment entered pursuant thereto.

The sole question presented on this appeal is whether the trial court properly granted the motion for a directed verdict. The motion raised the question of the sufficiency of the evidence to support a jury verdict. Under some circumstances it would be necessary for the appellate court to determine whether the state or federal test of sufficiency of the evidence to create a jury question is to be applied. The Supreme Court of the United States has left this question undecided, and the Circuits are divided on the question of whether federal courts should apply a federal rather than a state test in making such a determination.¹ In some instances the federal and state standards are nearly identical, and thus the problem of choosing between such tests is unnecessary. In this case there is no problem of choice, for this Court has specifically held that the North Dakota test and the Federal test are substantially the same. In Schultz & Lindsay Construction Company v. Erickson 352 F.2d 425 (1965), this Court, speaking through Chief Judge Matthes, stated (p. 430):

"* * * The federal courts and the North Dakota courts apply substantially the same standard in determining the sufficiency of the evidence. Cases cited. Both parties assumed that North Dakota law was to be applied. Therefore, we shall follow the standard which the Supreme Court of North Dakota has enunciated in the following language:

`On a challenge to the sufficiency of the evidence to support the verdict this court will take the view of the evidence most favorable to the verdict, giving to plaintiff\'s evidence the strongest probative force of which it will admit and will draw therefrom such inferences and conclusions favorable to the jury\'s verdict as a reasonable consideration of the evidence will permit.\' (Citations of authority). Stadick v. Olson\'s Hardware, 64 N.W.2d 362, 364 (N.D.1954).

This rule was discussed by our court, Judge Johnsen, in the case of United States Fire Ins. Co. v. Milner Hotels, Inc., 253 F.2d 542, 546-547 (8 Cir. 1958). He stated:

`In relation to what has been said, it must conformingly be borne in mind that under North Dakota law, as generally, negligence and proximate cause are not ordinarily questions which may be taken from the jury. "They become questions of law only when the state of the record is such that reasonable men can draw but one conclusion therefrom."\' Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11, 13; Geier v. Tjaden, N.D., 74 N.W.2d 361, 364.

`Negligence and proximate cause will become transformed from questions of fact into questions of law rather on probative deficiency than on probative abundance. Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise. Nor is a court required to set aside a verdict in such a situation, just because the judgment of the jury may have been strange and unusual on the evidence in the case.\'

The federal standard for the sufficiency of circumstantial evidence (as set out in Wray M. Scott Co. v. Daigle, 309 F.2d 105, supra) is also basically the same as that adhered to by the North Dakota courts and discussed in Smith v. Knutson, 76 N.D. 375, 36 N.W.2d 323, 327 (1949):

`* * * "The most direct and positive testimony may be completely demolished by circumstantial evidence, or overcome in the minds of a jury or the mind of a court by the establishment of other facts inconsistent therewith."\' In Paulsen v. Modern Woodmen of America, 21 N.D. 235, 243, 130 N.W. 231, 234, this Court said:

`"Ordinarily the question of what inferences are deducible from the evidence is peculiarly a question for the jury, and it is only in rare instances that the court is justified in determining such question as a matter of law. If it can be said that reasonable men may fairly differ as to the inferences to be deduced from all the circumstances disclosed, it is a proper case for the jury."\'"

See, also, Parke-Davis & Co. v. Stromsodt, 411 F.2d 1390 (8 Cir. 1969), and Trapp v. 4-10 Investment Corporation, 424 F.2d 1261 (8 Cir. 1970). It is also clear from respective briefs that counsel for both parties are in substantial agreement as to the proper test to be applied, and are in accord with the view of this Court that the State of North Dakota standard and the Federal standard are substantially similar.

Consideration and discussion of certain portions of the evidence, as disclosed by the record, is, of course required. The law is well established that "The credibility of the witnesses and the weight to be given to their testimony are questions of fact for the jury to determine" (Degenstein v. Ehrman, N. D., 145 N.W.2d 493, 504), and "The trier of the facts is not required to accept the uncontradicted testimony of an uncorroborated interested party, although such testimony is not contradicted by other testimony." Degenstein, supra, at page 512. Such evidence must be considered in the light of the applicable standard and controlling rules of law. Although we have carefully examined the entire record (including the transcript of testimony and all exhibits received), only those portions of the evidence which are pertinent to the problem before us will be discussed in detail.

Since all parties concede that appellant was a guest in the motor vehicle at the time of the accident, we are concerned with specific provisions of the so-called "guest statutes" which were in force and effect at the critical time. Those statutes (being a part of the North Dakota Century Code) are as follows:

"39-15-02. Liability for injury to or death of guests. — Any person who as a guest accepts a ride in any vehicle moving upon any of the public highways of this state, and who while so riding as such guest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such vehicle. In the event that such person while so riding as such guest is killed or dies as the result of an injury sustained while so riding as such guest, then neither the estate nor the legal representatives nor heirs of such guest shall have any right of recovery against the driver or owner of said vehicle by reason of the death of such guest. If such person so riding as a guest is a minor and sustains an injury or is killed or dies as a result of injury sustained while so riding as such guest, then the parents, guardian, estates, legal representatives, and heirs of such minor shall have no right of recovery against the driver or owner or person responsible for the operation of said vehicle for injury sustained or as a result of the death of such minor."

"39-15-03. When driver of motor vehicle liable for injury or death. — The provisions of this chapter shall not be construed as relieving the owner, driver, or person responsible for the operation of a vehicle from liability for injury to or death of a guest proximately resulting from the intoxication, willful misconduct, or gross negligence of such owner, driver, or person responsible for the operation of such vehicle. In any action for death or for injury or damage to person or property by or on behalf of a guest or the estate, heirs, or legal representatives of such guest, the burden shall be upon the plaintiff to establish that such intoxication, willful misconduct, or gross negligence was the proximate cause of such death, injury, or damage."

Plaintiff neither alleged nor claimed intoxication or willful misconduct on the part of either of the defendants. Her right to recover is based upon claimed "gross negligence" of defendant Downs in the operation of the vehicle as proximately causing her injuries. It is clear that the plaintiff has the burden of proving that the acts or omissions complained of on the part of defendant Downs constitute gross negligence. As the term "gross negligence" is not...