Stokes v. Continental Assurance Company, 16238.

• Decision Date: 03 July 1957
• Docket Number: No. 16238.,16238.
• Parties: Edgar W. STOKES, Appellant, v. CONTINENTAL ASSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

242 F.2d 893 (1957)

Edgar W. STOKES, Appellant, v. CONTINENTAL ASSURANCE COMPANY, Appellee.

No. 16238.

United States Court of Appeals Fifth Circuit.

April 3, 1957.

Rehearing Denied July 3, 1957.

Thomas H. Anderson, Miami, Fla., Anderson & Nadeau, Miami, Fla., for appellant.

Wesley G. Carey, Miami, Fla., Carey & Papy, Miami, Fla., for appellee.

Before TUTTLE, JONES and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment based on a jury verdict in the trial court in favor of the defendant insurance company in a disability case. The record is silent as to any motion for directed verdict for appellant and as to any objection to the charge of the court as to alleged errors here raised for the first time.

The plaintiff alleged that he was a physician who had been living in Louisville, Kentucky, where he had operated a sanitarium for alcoholics, drug addicts, nervous patients and mental patients for 27 years; that he sold the sanitarium in 1950 and gave up his operation of it in 1951; in February 1952 he was en route to Florida, in which state he had learned that "there would be a position available in mental hygiene," and near Clewiston he had an automobile accident which he alleged caused him injuries that kept him in the hospital for five or six days after he had continued to Fort Lauderdale. There were no fractures and no permanent injuries except, as stated in his brief, over the next few months he "displayed symptoms of headache, nervousness, was exhausted, had a ringing in his ears." He testified that these symptoms "have persisted more or less to the present time" and that when he is under strain he cannot sleep and he is forgetful.

The testimony on behalf of plaintiff supported these allegations and medical witnesses gave the opinion that he was occupationally disabled. These opinions were in large part based on subjective symptoms and on the patient's history as related by him. All physical tests, including those of the brain and nervous system, were normal. On cross-examination the witnesses qualified somewhat their views as to the extent of disability, althoughi it is quite clear that there was sufficient evidence on behalf of the plaintiff for the jury to have found in his favor. Medical witnesses for the defendant testified as to the normality of all tests made as to brain and nervous system as well as the heart. The plaintiff himself testified at length as to his nervousness and irritability. He was therefore under constant observation by the jury both while on the witness stand and at the counsel table during the trial. In light of the fact that nearly all of the symptoms which plaintiff relied on to show his disability were subjective, that is, those related by him, and in view of his own participation in the trial and the fact that there was no proof of any effort by plaintiff to test his ability to engage in any business activity either within his medical field from which he had retired or as a mental hygienist, Mutual Life Ins. Co. of New York v. Ellison, 5 Cir., 223 F.2d 686, we could hardly say, even if the point had been properly raised, that a jury verdict for the plaintiff was demanded.

Here, however, the sufficiency of the evidence to sustain the jury's verdict is not before us. Upon the conclusion of the entire case the defendant, and the defendant alone, moved for a directed verdict. The plaintiff was content to let the case go to the jury. We have repeatedly held that in such circumstances the question of sufficiency of the evidence to support a verdict for the defendant is foreclosed.

"We find that no motion by any appellant was made in the trial for an instructed verdict, so that no question of the sufficiency of the evidence has been properly raised; * * *". Baten v. Kirby Lumber Corp., 5 Cir., 103 F.2d 272, 273.

In Boudreaux v. Mississippi Shipping Co., Inc., 5 Cir., 222 F.2d 954, we said:

"(1) Appellee, insisting that the jury\'s verdict is amply supported on the record, points out that there was no motion for a directed verdict, nor any objection to the giving or the failure to give an instruction. So pointing it urges upon us that the assigned error presents nothing for our consideration under the plain provisions of Rule 50(b) and Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A., and the authorities construing and applying them. We agree that this is so.

"(2) This court has never departed from but has consistently reaffirmed the rule governing in cases of this kind, as laid down in Baten v. Kirby Lumber Corp., 5 Cir., 103 F.2d 272, 274:

"`Whether the verdict is authorized by the evidence is a question not reserved in the trial. The defendants went to the jury without challenging its sufficiency, and no error can be attributed to the judge thereabout. Federal appellate courts do not directly review jury verdicts but only rulings of the judge which may have affected the verdict. Rule of Civil Procedure 50, 28 U.S.C.A., following section 723c, does not do away with but emphasizes the necessity of a motion for a directed verdict to raise the legal question whether the evidence is sufficient.\'"

The reason for this rule makes clear that it is no mere technicality. If a party believes that his opponent has failed to produce the sufficiency of evidence that will support a verdict in his favor, he can choose either to ask the court to direct a verdict in his favor or he can take his chances with the jury. It is something of a gamble with him. If the court directs a verdict in his favor and this action is later reversed, he must face a new trial. He may therefore, in a doubtful case, prefer to leave his case up to the jury, as he did here. Having done so, and having lost before the jury, he cannot be heard later to say that the trial judge should be put in error for having submitted the matter to the jury in the first place. As has been so succinctly stated by Judge Sibley, under the circumstances of this case, "no error can be attributed to the trial court thereabout." Baten v. Kirby Lumber Co., supra, 103 F.2d at page 274.

The same bar exists to our considering the remaining contentions of appellant. The policy here in question does not have the usual language of disability policies such as "wholly * * * unable to engage in any occupation or profession or to perform any work for compensation, gain or profit," the language before the Florida court in New England Mutual Life Ins. Co. v. Huckins, 127 Fla. 540, 173 So. 696, 700, or "impossible for the Insured to follow a gainful occupation," the language considered by us in the Florida case of Mutual Life Ins. Co. of New York v. Ellison, 5 Cir., 223 F.2d 686, 687. The language in the present policy is "If the insured is...