Thomas v. ATLANTIC COAST LINE RAILROAD COMPANY

• Decision Date: 22 July 1955
• Docket Number: No. 15022.,15022.
• Citation: 223 F.2d 1
• Parties: C. A. THOMAS, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee. R. O. PLANK, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

223 F.2d 1 (1955)

C. A. THOMAS, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.

R. O. PLANK, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.

No. 15022.

United States Court of Appeals Fifth Circuit.

June 2, 1955.

Rehearing Denied July 22, 1955.

Miller, Miller & Hewitt, Wareing T. Miller, West Palm Beach, Fla., Clarence J. Brown, Jr., Miami, Fla., for appellants.

Frank A. Howard, Jr., H. Reid DeJarnette, Miami, Fla., J. A. Franklin, Parker Holt, Fort Myers, Fla., Dixon, DeJarnette & Bradford, Miami, Fla., Henderson, Franklin, Starnes & Holt, Fort Myers, Fla., C. C. Howell, Atlantic Coast Line Railroad Company, Wilmington. N. C., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

TUTTLE, Circuit Judge.

Appellee's statement of the case appears to be clear and accurate, and we adopt and supplement that statement:

"This appeal involves two actions for damages brought against the appellee Railroad to recover the value of property lost in a fire on February 20, 1951. The locale of the property, and of all events of that day, was Lake Harbor, Florida, a small farming hamlet southeast of Lake Okeechobee and forming the point of interchange between the southern end of the Atlantic Coast Line Railroad tracks, and those of the Florida East Coast Railway leading south. The surrounding country is open farmland and glades area, with muck soil.

"On February 20, 1951, the appellant Thomas was the owner of a building used as a warehouse and packing house, located upon land owned by the appellee Railroad and forming part of its right-of-way immediately south of its tracks in Lake Harbor, Florida. The land upon which the building stood was leased to Mr. Thomas for a rental of $60.00 per year, and included an indemnity provision whereby the lessee agreed to save harmless the Railroad any liability for loss or damages to the lessee's building or its contents `whether the same is the result of fire caused by negligent emission of sparks from the locomotive engines of Lessor, or otherwise, however resulting.' (Plaintiff's Exhibit 20).

"Appellant Plank had a sublease from Thomas, with the approval of the Railroad, covering a leanto shed located at the southeast corner of the packing house, and in which he operated a machinery repair shop. Under the terms of the sublease Mr. Plank was also bound by the indemnity provision in the original lease.

"During the early evening of February 20, 1951, the entire packing house was destroyed by fire, and thereafter the appellants Thomas and Plank filed separate suits in the state court against the Railroad, attaching copies of the lease and sublease to their respective complaints, and claiming damages for the loss of the building and the property stored inside. The cases were removed to the United States District Court for the southern district of Florida.

"The significant allegations of both complaints are identical, and charge the Railroad with `gross, wilful and wanton negligence,' with `reckless disregard of defendant's duty to protect plaintiff against injury,' and with `an intention to invade a legally protected interest of the plaintiff.' The complaints then set forth that the employees of the Railroad first set fire to a pile of debris close to the building owned by Thomas, then left the fire burning and departed from the scene, and finally that the Railroad's depot agent, having been notified of the fire, was dilatory in reporting its existence.

"Upon motion of the defendant setting up the indemnity provision in its lease as a bar to the actions, the District Judge dismissed the complaints. The plaintiffs appealed, and this Court reversed, holding that the clause was valid and would exempt the Railroad from liability for ordinary negligence, but would not apply if wilful or wanton negligence were proved. Further holding that the complaints could be construed as alleging wilful or wanton negligence (but expressly withholding opinion upon the adequacy of the facts alleged), the Court remanded the cases for trial on the merits. See Thomas v. Atlantic Coast Line Railroad Co., 5 Cir., 1953, 201 F.2d 167.

"The Railroad filed its answer to each complaint denying the acts alleged and all claims of wilful or wanton negligence, and set up the indemnity provision in its lease as an affirmative defense. The cases were consolidated and tried together in July, 1953."

The taking of testimony before the court and a jury began on the morning of Friday, July 10, 1953, and was not concluded until the late afternoon of Tuesday, July 14th. The district court denied the motion of the defendant for a directed verdict made at the close of plaintiffs' testimony. When all of the testimony was in, the defendant renewed its motion for a directed verdict assigning an additional ground as follows:

"Comes now the defendant at the close of all the testimony and renews the motion heretofore made for a directed verdict upon the grounds therein stated, and upon the additional ground that it now appears from the affirmative testimony of the employees and agents of the defendant that the defendant has not been guilty of wanton or wilful negligence or any act which would intentionally harm the property of the plaintiffs."

After argument on the motion, the following occurred:

"The Court: Well Gentlemen, I don\'t think that there is sufficient evidence to warrant the jury considering this case, or these cases, from the standpoint of wilful or wanton negligence, so I am going to grant the motion.

"Mr. Brown: May I suggest in order to save expense of the parties, in view of the fact that we have gone this far, that Your Honor reserve ruling and submit this matter to the jury so that in the event the jury should return a verdict in favor of the railroad, then there would be no need of appealing; in the event the jury should return a verdict in favor of the plaintiffs, then by an appeal on the part of the defendants the Circuit Court might pass upon the question without the necessity of going to the expense of another trial.

"Mr. DeJarnette: Let\'s not compromise in our ruling. You have expressed the view that you do not think it should go to the jury. I feel that under those circumstances the verdict should be directed.

"The Court: I think so."

The sole question to be decided is whether there was sufficient proof of wilful or wanton misconduct on the part of the defendant to require submission of the case to the jury. One of the latest statements by this Court of the rule to be applied reads:

"On a motion for a directed verdict, it is the duty of the court to accept as true all the facts which the evidence tends to prove, and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion, and if the evidence is of such a character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury." Swift & Co. v. Morgan & Sturdivant, 5 Cir., 214 F.2d 115, 116.

See also Strawn v. Travelers Ins. Co., 5 Cir., 200 F.2d 778, 779, 780; Lowrie v. American Surety Co. of New York, 5 Cir., 146 F.2d 33, 35.

Appellee insists that the rule to be applied in the federal courts is that a motion for directed verdict should be granted when "the evidence is clearly such that if a verdict were rendered for the adverse party, the moving party would be entitled to a new trial. Pennsylvania Railway Co. v. Chamberlain, 1933, 288 U.S. 333, 343 53 S.Ct. 391, 77 L.Ed. 819; Daroca v. Metropolitan Life Insurance Co., 5 Cir., 1941, 121 F.2d 917." The authorities relied on by the appellee sustain its statement of the rule (see also Strawn v. Travelers Ins. Co., supra), though we think the word "entitled" should be emphasized, for it is now well settled that the rules to be applied as to the sufficiency of the evidence are different when the court is passing on a motion for directed verdict or for judgment n. o. v. on the one hand, and when it is passing on a motion for new trial on the other.¹ If the evidence is so clearly insufficient that the party against whom the verdict was rendered "would be entitled to a new trial", Pennsylvania Railway Co. v. Chamberlain, supra 288 U.S. 333, 53 S.Ct. 395, or that the judge "would be obliged to grant a new trial", Daroca v. Metropolitan Life Insurance Co., supra 121 F.2d 920, or "compelled to set aside a verdict", Strawn v. Travelers Ins. Co., supra 200 F.2d 779, then a denial of a motion for new trial would be an abuse of discretion, an error of law reviewable on appeal. See Whiteman v. Pitrie, 5 Cir., 220 F.2d 914, and authorities there cited. In less extreme cases, however, when the verdict is merely contrary to the preponderance of the evidence, or when the trial judge thinks the verdict is wrong though supported by some evidence, he may properly exercise his discretion in granting a new trial. Marsh v. Illinois Central R. Co., 5 Cir., 175 F.2d 498, 500; Pennsylvania Thresherman & Farmers' Mutual Casualty Ins. Co. v. Crapet, 5 Cir., 199 F.2d 850, 853; Snead v. New York Central R. Co., 4 Cir., 216 F.2d 169, 172, 175; 5 Moore's Federal Practice, 2nd ed., Para. 50.03.

Various formulas for ruling on a motion for directed verdict appear in the opinions of the Supreme Court, and one of the later cases has said that the matter is not greatly aided by substituting one general formula for another. Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 87 L.Ed. 1458. The opinion in that case, along with the dissenting opinion of Mr. Justice Black, demonstrates the necessity of constant vigilance on the part of the lower federal courts lest the constitutional guaranty of jury trial be invaded. One of the latest expressions of the Supreme Court is simply that: "The requirement is for probative facts capable of supporting, with reason, the conclusion expressed in the verdict." Myers v. Reading Co., 331 U.S. 477, 485...