Appendix — Fortenberry v. New York Life Insurance

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IN THE WICHAEL ROO AL

1873

SUPREME COURT OF THE UNITED STATES

October Term, 1972

NO. 72-277

HENRY C. FORTENBERRY, father of

GARY C. FORTENBERRY, deceased,

Petitioner,

NEW YORK LIFE INSURANCE COMPANY,

Respondent .

APPENDIX TO PETITION FOR REHEARING

PETER L. NILES,

1209 South Peninsula Drive,

Daytona Beach, Florida 32018,

Attorney for Petitioner.

LAW PRINTERS. P. ©. Box 277. Knoxville, Tennessee, Phone 525-4202

_ —

[466 F.2d 179 (1972)]

FIREMAN'S FUND INSURANCE COMPANY,

a Corporation, et al.,

Appellants,

Vv.

AALCO WRECKING COMPANY, INC. ;

a Corporation,

Appellee.

No. 20552.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 18, 1971.

Decided Aug. 7, 1972.

Rehearing and Rehearing En Banc

Denied Sept. 26, 1972.

Dissenting Opinion from Denial of

Rehearing En Banc

Oct. 16, 1972.

Dale [. Larson, Adolph K. Schwartz, Hullverson,

Richardson & Hullverson, St. Louis, and Robins, Davis

& Lyons, Minneapolis, Minn., for appellants.

Edward D. Weakley, Boyle, Priest, Elliott & Weakley,

Howard Elliott, St. Louis, Mo., for appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

A. 1

466 F.2d 179 (1972)

LAY, Circuit Judge.

Plaintiff insurance companies initiated this subrogation

action to recover the damages to their assureds arising

from a fire loss at the Shapleigh Warehouse Complex in

St. Louis, Missouri, on August 4, 1965. Plaintiffs re-

ceived a jury verdict against the defendant, Aalco Wrecking

Company, Inc., who was engaged in demolition work at

the complex; however, on post trial motions the district

court granted defendant's motion for judgment n.o.v. and

alternatively under Federal Rule of Civil Procedure 50(c)

defendant's motion for new trial. Plaintiffs now appeal

this judgment. We reverse with direction to enter judg-

ment for the plaintiffs in accordance with the original

verdict .

In August 1965 the defendant Aalco conducted demolition

work on a group of buildings in downtown St. Louis. In

the early morning hours of August 4, 1965, a blaze was

discovered in the buildings. At the time of discovery the

fire had reached three to five alarm proportions. Soon

after the fire department arrived the fire spread out of

control damaging the assureds’ personal property which

was stored in an adjacent building. The cause of the fire

was unknown. Plaintiffs claim that the delay in the detec -

tion of the fire caused the extensive destruction and resulted

from defendant's failure to have a watchman on the premises.

Plaintiffs assert that the defendant did not and could not

secure the demolition site from intruders and did not

maintain a watchman at the site to protect the buildings

and notify the fire department of any fires.

The trial court submitted the case to the jury under

the following instructions:

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466 F.2d 179 (1972)

“Your verdict must be for the plaintiffs if you believe:

First, a fire started in the area being demolished by the

defendant and spread to adjacent property, including that

occupied by the insured tenants mentioned in evidence,

and

Second, the buildings being demolished by defendant

were not secured against transients or vandals and it

was not reasonably possible to do so, and defendant

provided no watchman while the demolition was not in

progress, and

Third, defendant's failure to employ a watchman was

negligence, and

Fourth, as a direct result of such negligence there was

a delay in discovering and reporting the fire to the fire

department, and

Fifth, as a direct result of such delay the fire spread

to property occupied by the tenants and caused damages

to them and losses to the plaintiffs ."

{1] We find substantial evidence to sustain the jury's

finding of negligence and proximate cause arising from

defendant's failure to employ a watchman.

Although there was conflicting testimony, substantial

evidence was presented to establish that at the time the

fire was originally discovered it was burning in the area

demolished by the defendant, and from there it spread

to the adjacent property.

Considerable evidence was offered to prove that de-

fendant did not and could not secure the buildings being

razed and that defendant had not employed a watchman.

The Building Code of the City of St. Louis §2116.2(9)

provides:

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466 F.2d 179 (1972)

“All buildings to be razed three stories in height or

greater shall be kept secure against entry of transients

or vandals. If security is not possible, watchman

shall be provided during the hours wrecking is not being

accomplished."

Defendant's witnesses agreed that if the buildings could

be secured, there was no need for a watchman on the dem-

olition site. Implicit in this testimony was the premise

that if the buildings were not secure, it was customary

within the construction trade in St. Louis to provide a

watchman. Thus, one of the focal issues turned on the

factual question whether the buildings could be made

secure. On the basis of the record presented this court

cannot say substantial evidence did not exist to support

the jury's finding as to the lack of security in the building

complex.

Captain Klein of the St. Louis fire department visited

the demolition site on August 3, 1965, the evening before

the fire. His testimony reads:

“A. No, I don't recall a single instance where we

had to force a door or anything else. Most of the times

the doors were hanging open, and we just walked right

through.

"Q. Did you normally walk through the buildings?

“A. Right.

"Q. On the evening of August 3, 1965, did you have

occasion to observe whether the fire doors, many of

waich-are exposed and showing as little brown card-

board spots on this model, were open or closed?

“A. I'd say for the most part they were either open

or gone entirely. :

"Q. All right, sir. Now, in prior visits when you

went into the building, Captain, or the buildings, did

NEARS G! <I ENE IAT

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466 F.2d 179 (1972)

you have any difficulty gaining access to Building

No. 11?

"A. None whatsoever. No, in fact, we had driven

the battalion car in there and turned it around inside

this building. It was large enough for a truck.

. = *

"Q. And at any time when you were in these buildings,

Captain, had you had any difficulty in gaining access

from one to the other?

“A. No, none whatsoever ." App. at 262-263.

Several other witnessés verified that the buildings were

not always secure. Even Aalco's Superintendent indicated

that it was impractical to secure portions of the complex.

The evidence amply Supports the conclusion that there

was a delay in discovering and reporting the fire. The

record shows that Captain Klein estimated that the fire

had been burning up to one hour before the fire department's

arrival. The record also shows that there was a Potter

electronic supervisory alarm line which was grounded at |

2:10a.m., twenty-one minutes before any report of the

fire .1

: The Potter Electric Alarm Company had installed and was monitoring

the fire sprinkler systems for the entire complex. Because of the demo-

lition project's interference with its existing electrical cables, a temporary

Plastic cable was run along the sprinkler piping and spliced to the original

cable in order to supervise the remaining buildings. At 2:10 a.m. on

August 4, 1965, Potter recorded a “ground™ signal which meant that the

insulation surrounding the wire was destroyed and was touching a conductor

to the ground, such as the sprinkler piping. There was no dispute that

the fire caused Potter's “ground” signal, and as a result of the “ground”

no alarm could be received from the sprinkler systems,

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A.6

466 F.2d 179 (1972)

Defendant challenges plaintiffs’ right to recover on the

basis that defendant's failure to provide a watchman did

not constitute (1) negligence or (2) the proximate cause of

the plaintiffs‘ damage. We must disagree.

{2,3] Violation of a city ordinance under Missouri law

is evidence of negligence. . See Dickerson v. St. Louis

Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824

(1956); Wells v. Henry W. Kuhs Realty Co., 269S.W.2d

761, 767 (Mo. 1954). See also Cichacki v. Langton, 392

S.W.2d 397, 400 (Mo. 1965).? Although the ordinance

was offered and received in evidence, the plaintiffs did

not request an instruction on it nor did the trial court

instruct the jury under it. Nevertheless, the jury could

without error consider the ordinance as evidence of negli-

gence. The failure of the court to instruct on the ordinance

was not prejudicial to the defendant. Section 2116.2(a)

of the Building Code of the City of St. Louis was expressly

enacted, along with other sections, to require fire safety

precautions and to avoid fire hazards. Plaintiffs’ assureds

were clearly within the class of beneficiaries whom the

Code sought to protect. However, notwithstanding con-

sideration of the ordinance, there existed sufficient

Another suit arising out of this same fire loss was brought by different

plaintiffs and resulted in a verdict for Aalco in the Missouri state court.

See Washington University v. Aalco Wrecking Co., ...S.W.2d... (Mo.

1971). On appeal the judgment for the defendant was affirmed. How-

ever, in January 1972 the court entertained a rehearing on the question

whether violation of the Building Code provisions (including §2116.2(9))

constituted negligence per se. The plaintiffs apparently, as here, did

not request an instruction on the ordinance although the ordinance was

received into evidence. It is significant that the Missouri Supreme Court

did not reject plaintiffs’ theory of common law negligence and proximate

cause which was identical to that which has been asserted here. As of

this writing no decision has been rendered on the reargument.

, aetna

PES BORE ARRAS NOTRE ’ aa

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A.7

466 F.2d 179 (1972)

credible testimony, including statements from the defend -

ant's own witnesses, that it was the custom recognized in

the construction trade in St. Louis to have a watchman on

demolition premises unless the premises could be made

secure.

[4] Under common law where a party fails to provide

protection against known dangers, that failure has been held

to be negligence. Cf. Imperial Oil, Ltd. v. Drlik, 234

F.2d 4 (6 Cir. 1956), cert. denied, 352 U.S. 941, 77

S.Ct. 261, 1 L.Ed.2d 236 (failure to post a watchman at

the rail of a vessel to warn the ship's winch operator of

danger to dock crewman from suddenly -drawn -taut mooring

lines); Brumm v. Goodall, 16 Ill.App.2d 212, 147 N.E.2d

699 (1958) (failure to provide sufficient lifeguard supervision);

Richardson v. Ham, 44 Cal.2d 772, 285 P.2d 269 (1955)

(undue risk of harm created by an unattended bulldozer);

Stoutwell v. Board of Trustees of Stanford Univ., 64 Cal.

App.2d 197, 148 P.2d 405 (1944) (failure to have a suf-

ficient number of police to protect university students);

Stevens v. City of Pittsburgh, 329 Pa. 496, 198A. 655

(1938) (lack of proper supervision of young boys firing

rifles); Rovegno v. San Jose Knights of Columbus, 108

Cal.App. 591, 291 P. 848 (1930) (failure to furnish life -

guards).

(S] If an owner of property negligently allows the spread

of a fire on his premises, he may be liable for injury to

others even though he has no connection with the fire's

origin. See Capra v. Phillips Investment Co., 302

S.W.2d 924, 928 (Mo. 1957). See also Willard v. Beth-

urem, 234S.W.2d 18 (Mo.App. 1950); Steele v. Darner,

124 Mo.App. 338, 103S.W. 582 (1907). In Reid v. Sibell,

Inc. v. Gilmore & Edwards Co., 134 Cal.App.2d 60, 285

P.2d 364 (1955), the defendant was storing highly inflam -

466 F.2d 179 (1972)

mable liquids in its section of a building also occupied by

plaintiff. The building caught fire, and plaintiff contended

that the fire spread and injured plaintiff's property as a

result of the combustion of the liquids stored by defendant.

Plaintiff complained that defendant was negligent, not for

starting the fire, but for failing to take reasonable precau-

tions to prevent the spread of the fire since it knew that

if a fire was to start, the high flammability of its stored

liquids would cause the fire to readily endanger plaintiff's

property. The court agreed, saying:

"There seems no sound reason to restrict this right

and its corresponding duty to acts which contribute to

the origin of a fire, as distinguished from its spread.

In other jurisdictions, the rule, particularly in the later

cases, appears to follow the view that one is liable for

acts or omissions which cause the spread of fire of

whatever origin." 285 P.2d at 368.

In view of all the surrounding circumstances, we con-

clude that the trial court properly submitted to the jury

the issue of negligence arising from the defendant's failure

to furnish a watchman on the premises.

Defendant likewise challenges the submission to the

jury of the question whether the failure to furnish a watch-

man constituted the proximate cause of the fire spreading

to the property of plaintiffs’ assureds. The defendant

argues that it is speculative whether a watchman could

have seen the fire in sufficient time to have prevented

its eventual destruction.

[6] It is well settled under the law of Missouri that

the causal connection between negligence and harm need

not be established by direct evidence. Causation may

be established by proof of facts and circumstances from

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A.9

466 F.2d 179 (1972)

which the connection may be reasonably inferred. State

ex rel. City of St. Charles v. Haid, 325 Mo. 107, 28

S.W.2d 97, 102 (1930); Phillips v. Stockman, 351S.W.2d

464, 473 (Mo.App. 1961); Leek v. Dillard, 304S.W.2d

60, 65 (Mo.App. 1957); Long v. F. W. Woolworth Ce.,

232 Mo.App. 417, 109S.W.2d 85, 88 (1937).°

There were many evidential factors which the jury

could have properly considered relating to the issue of

proximate cause: (1) demolition premises are recognized

as a highly hazardous fire area; (2) the ground wires on

the fire. alarm indicated the fire had burned for at least

one-half hour before it was visually discovered and

reported;. (3) the fire was observed from three blocks

away by a night watchman twenty-one minutes after the

electrical alarm was grounded; (4) Captain Klein of the

St. Louis fire department testified that in his opinion if

the fire had been reported fifteen minutes earlier, damage

to the adjoining property would have been averted; (5) the

fire had been burning up to an hour before the fire depart -

ment arrived and two of the buildings were completely

engulfed in flames.

In Steele v. Woods, 327 S.W.2d 187, 195 (Mo .1959),

the Missouri Supreme Court recognized that:

"It is sufficient if there is substantial evidence which

shows that the injury is a natural and probable conse -

quence of the negligent act or omission. And this can

The United States Supreme Court in Lavender v. Kurn, 327 U.S. 645,

653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1949), aptly observed:

“Whenever facts are in dispute or the evidence is such that fair-minded

men may draw different inferences, a measure of speculation and

conjecture is required on the part of those whose duty it is to settie the

dispute by choosing what seems to them to be the most reasonable in-

ference. Only when there is a complete absence of probative facts to

support the conclusion reached does a reversible error appear, ”

Hise a! ’

tS) eee a

A.10

466 F.2d 179 (1972)

be determined by reasonable inference from proven

facts or circumstantial evidence. Where the logical

conclusion from the evidence is that if certain things

were properly done certain results would not have oc -

curred, and they did occur, the question of causal con-

nection is sufficient to go to the jury."

(7] There are many instances in tort litigation where

precise causation becomes difficult to prove. There is

no exact way to prove that the harm might have been

avoided, because the harm did in fact take place. Thus,

whether a fall in an inadequately lighted area would not

have occurred if the premises had been properly lighted,°

whether typhus disease would have been contracted if it

had not been for a rat infested cellar of an apartment

project,® or whether an explosion would have occurred

even with proper ventilation,’ each requires a judgment

of whether the defendant's conduct causally contributed

to the harm. A plaintiff does not have the negative burden

to show that the harm could not have possibly occurred

if the defendant had performed the duty breached. It

would be absurd to say that a defendant could hide behind

such absence of proof where his own conduct has created

the fertile ground for harm and the harm did in fact occur.

It has long been recognized that:

4 In Rovegno v. San Jose Knights of Columbus, 108 Cal. App. 591, 291

P. 848 (1930), the California court stated:

“(TJhe only negligence alleged is the failure of respondents to provide

a lifeguard or other person or persons skilled in life saving. Even had

such a guard been present respondents urge, there is no showing that the

boy's life would have been saved. Just what would have happened had

a lifeguard been present is, of course, not capable of direct proof. It

is largely a matter of speculation or of inference. Even so, it has been

held that the question is one for the jury and not one for the court.”

291 P. at 849-850.

5 Swanson v. Goodwin, 327 S. W.2d 903 (Mo. 1959).

6 State of Maryland for Use of Pumphrey v. Manor Real Estate & Trust

Co., 176 F.2d 414 (4 Cir. 1949).

7 Marshall v. Humble Oil & Refining Co., 459 F.2d 355 (8 Cir. 1972).

| — we 8

466 F.2d 179 (1972)

"[I]f the actor's negligence, either of act or omission,

results in harm of the sort from which the duty was

designed to protect the other, his negligence may be

regarded as a substantial factor in bringing about the

harm in spite of the fact that the same harm might

possibly have been sustained had the actor not been

negligent." State of Maryland for Use of Pumphrey v.

Manor Real Estate & Trust Co., 176 F.2d 414, 418

(4 Cir. 1949) 8

We conclude that the evidence was sufficient for the

jury to pass on the question of proximate cause. Thus,

we conclude the trial court erred in granting a judgment

notwithstanding the verdict.

(8] The trial court also granted defendant's alternate

motion for a new trial. Generally this court has upheld

the exercise of the trial court's grant of a new trial as

8 See also Restatement (Second) of Torts, $4338, Comment a (1965),

“A mere possibility of such causation is not enough; and when the

matter remains one of pure speculation and conjecture, or the prob-

abilities are at best evenly balanced, it becomes the duty of the court

to direct a verdict for the defendant.“

This statement is to be balanced by comment b.

“The plaintiff is not, however, required to prove his case beyond a

reasonable doubt. He is not required to eliminate entirely all pos-

sibility that the defendant's conduct was not a cause. It is enough

that he introduces evidence from which reasonable men may conclude

that it is more probable that the event was caused by the defendant

than that it was not. The fact of causation is incapable of mathematical

proof, since no man can say with absolute certainty what would have

occurred if the defendant had acted otherwise. If, as a matter of

ordinary experience, a particular act or omission might be expected

to produce a particular result, and if that result has in fact followed,

the conclusion may be justified that the causal relation exists. In

drawing that conclusion, the triers of fact are permitted to draw upon

ordinary human experience as to the probabilities of the case. Thus

when a child is drowned in a swimming pool, no one can say with

absolute certainty that a lifeguard would have saved him; but the

common experience of the community permits the conclusion that the

guard would more probably than not have done so, and hence that the

absence of the guard has played a substantial part in bringing about the

death of the child. Such questions are normally for the jury, and the

court may seldom rule on them as matters of law.“

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466 F.2d 179 (1972)

within his discretion. Silverthorn v. Hennigan, 439 F.2d

704, 705 (8 Cir. 1971); Bates v. Hensley, 414 F.2d 1006,

1011 (8 Cir. 1969); Simpson v. Skelly Oil Co., 371 F.2d

563, 566-567, 570 (8 Cir. 1967); Bankers Life & Casualty

~ Covv. Kirtley, 307 F.2d 418, 423 (8 Cir. 1962); Altrichter

v. Shell Oil Co., 263 F.2d 377, 380 (8 Cir. 1959). When

evidence is erroneously admitted or excluded or where

the trial court has erred in the instructions to the jury,

the trial court is considered in a better position to correct

a manifest injustice in ruling on the motion for new trial.

Under these circumstances the grant of the new trial does

not interfere with the role of the jury as the trier of fact.

Cf. Montgomery Ward & Co. v. Duncan, 311 U.S. 243,

251, 61 S.Ct. 189, 85 L.Ed. 147 (1940); Lind v. Schenley

Industries, Inc., 278 F.2d 79, 90 (3 Cir. 1960), cert.

denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60. How-

ever, we are not faced with this kind of ruling here.

The basic ground relied on by the trial court for granting

a new trial in the present case indicates that the court was

greatly influenced by its appraisal that the evidence failed

to make out a submissible case for the jury to consider.

The trial court cited ten grounds for its conditional grant

of a new trial. Seven of those grounds were repetititous

of the grounds given by the court in support of its judg-

ment n.o.v., relating to the lack of substantial evidence

to support the verdict. For the reasons we have previously

discussed, we feel the court's judgment n.o.v. was in error §

9 Defendant's motion also complains that certain testimony of Captain Klein

was believed to be too speculative; however, the defendant never objected

to its admission, We find no error in this testimony. The trial court also

cited plaintiffs* failure to offer evidence of diversity of citizenship. The

plaintiffs have belatedly introduced uncontroverted affidavits establishing

their out-of-state citizenship for diversity purpose. It is fundamental that

a new trial should not be granted to rectify such technical failure resulting

in harmless error, See Fed.R.Civ.P. 61; Illinois Terminal R.R. v. Fried-

man, 208 F.2d 675, 680 (8 Cir. 1953). See also 6a Moore, Federal Practice,

959. 08 [1], at 3774 & n. 8 (2d ed. 1971).

Fee OE OBR IN TAs

A.13

466 F.2d 179 (1972)

[9] Although the trial court does not make a specific

finding that “the verdict was contrary to the clear weight

of the evidence, " this court has held that a finding that

“the verdict is contrary to the evidence" is to be considered

its equivalent. See Lack Industries, Inc. v. Ralston Purina

Co., 327 F.2d 266, 273 (8 Cir. 1964). Thus, we conclude

the only possible valid ground for the granting of the new

trial was that the trial court felt "the verdict is against

the clear weight of the evidence."

In Simpson v. Skelly Oil Co., 371 F.2d 563, 566-567

(8 Cir. 1967), this court recognized:

tr)

inere is a difference in the function of a judge when

he is ruling on a motion for a directed verdict or a

judgment n.o.v. and when he passes on a motion for

a new trial . . . In the former instance, it is his duty

to accept the plaintiff's version as true for the purposes

of the motion, notwithstanding the existence of strong

testimony to the contrary; the judge is not concerned

with the weight of the evidence. On the motion for

new trial, however, he has wider, though not unlimited,

latitude and he may set the verdict aside where it is

against the weight of the evidence, or to prevent injustice."

(Emphasis ours.)

[10] Notwithstanding this broad latitude, as noted in

the Simpson case, there exist some boundaries to the

exercise of the trial court's discretion in granting a new

trial. Although stated with reference to a judgment n.o.v.,

the Supreme Court in Tennant v. Peoria and Pekin Union Ry.,

321 U.S. 29, 35, 64S.Ct. 409, 412, 88 L.Ed. 520 (1944),

explained: “Courts are not free to reweigh the evidence

and set aside the jury verdict merely because the jury

could have drawn different inferences or conclusions or

because judges feel that other results are more reasonable ,"’

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466 F.2d 179 (1972)

We find, as have other circuit courts of appeals }° this ad-

monition similarly applicable in dealing with motions for

new trial.

[11-15] It has been recognized in the Lind case, supra,

that where the trial court finds the verdict contrary to the

weight of the evidence and grants a new trial that the appel-

late court should "exercise a closer degree of scrutiny

and supervision . . . in order to protect the litigants’

right to jury trial." 278 F.2d at 90. See also 6a Moore,

Federal Practice, 459.08 [5] at 3819 (2d ed. 1971). Other

circuit courts have expressed similar reservations although

sometimes using different terminology. Thus, it has been

held that a trial judge should not grant a new trial merely

because he believes another result would be more reason-

able. Duncan v. Duncan, 377 F.2d 49, 52 (6 Cir. 1967),

cert. denied, 389 U.S. 913, 88S.Ct. 239, 19 L.Ed.2d

260. Nor should a new trial be granted where there is

no valid or useful purpose for submitting the case to another

jury. O'Neil v. W. R. Grace & Co., 410 F.2d 908, 915

(5 Cir. 1969). Where the subject matter of the litigation

is simple; where there exists no complicated evidence

or where the legal principles presented are such that they

would not confuse the jury, the court should be reluctant

to grant a new trial. See O'Neilv. W. R. Grace & Co.,

supra at 913; Lewin v. Metropolitan Life Ins. Co., 394

F .2d 608, 614-615 (3 Cir. 1968); Tidewater Oil Co. v.

10 See Beverage Distributors, Inc. v. Olympia Brewing Co., 440 F.2d 21,

24-25 (9 Cir. 1971), cert. denied, 403 U.S. 906, 91 S.Ct. 2209, 29

L.Ed. 2d 682; Cities Service Oil Co. v. Launey, 403 F.2d 537, 539-540

(5 Cir. 1968); Duncan v. Duncan, 377 F.2d 49, 52 (6 Cir. 1967), cert.

denied, 389 U.S. 913, 88 S.Ct. 239, 19 L.Ed, 2d 260; Schybinger v.

Interlake Steamship Co., 273 F.2d 307, 312 (7 Cir. 1959).

SRLS TP RE LEN TI

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466 F.2d 179 (1972)

Waller, 302 F.2d 638, 643 (10Cir. 1962). The Fifth

Circuit in Cities Service Oil Co. v. Launey, 403 F.2d

537 (1968), following Hampton v. Magnolia Touring Co.,

338 F.2d 303 (5 Cir. 1964), delineates a basis on which

a trial court may require a new trial on the weight of the

evidence. The court wrote:

"Although the cases are not consistent in usage,

some cases using the phrase ‘clear weight' and others

using the phrase ‘overwhelming weight' or ‘overwhelm -

ing evidence, ' it seems clear that the jury's verdict

must at least be against the great weight of the evidence

before a new trial may be granted." 403 F.2d at 540.

Otherwise, the Fifth Circuit adds, it "would destroy the

role of the jury as the principal trier of the facts, and

would enable the trial judge to disregard the jury's verdict

at will."" We endorse these observations.

[16] Regardless of the rhetoric used the true standard

for granting a new trial on the basis of the weight of the

evidence is simply one which measures the result in terms

of whether a miscarriage of justice has occurred. When

through judicial balancing the trial court determines that

the first trial has resulted ina miscarriage of justice, the

court may order a new trial, otherwise not. As in so

many other areas of the law, the trial court's judgment is

always subject to review under the relevant criteria of

law and facts athand. See 28U.S.C.A. §2106.

[17] In the present case we find that the evidence

presented does not require reconsideration by a new jury.

The evidence is such that reasonable men may differ as

to the result, therefore, the determination should properly

be left for the jury. See Berner v. British Commonwealth

Pac. Airlines, Ltd., 346 F.2d 532, 538 (2 Cir. 1965),

ay

A. 16

466 F.2d 179 (1972)

cert. denied, 382 U.S. 983, 86S.Ct. 559, 15 L.Ed.2d

472 (1966). As to the evidence within the record, there

exists no significant weight factor favoring the defendant.

In fact, in a second trial plaintiffs would be entitled to a

favorable instruction on the St. Louis Building Code. We

are hard pressed to say that a miscarriage of justice has

taken place in the first trial. We cannot approve under

the existing circumstances another time-consuming and

costly trial without better justification on the record. All

courts should be sensitive to and reasonably avoid crowded

dockets. Cf. Blonder-Tongue Lab., Inc. v. University

of Ill. Foundation, 402 U.S. 313, 91S.Ct. 1434, 28

L.Ed .2d 788 (1971). Because no good purpose would be

served by a second trial and weighing all relevant factors

we hold that it was abuse of discretion to grant a new trial.

Judgment reversed and remanded with directions to

enter a judgment on the verdict for the plaintiffs.

ON PETITION FOR REHEARING

EN BANC

MEHAFFY, Circuit Judge, joined by MATTHES, Chief

Judge, dissenting from the denial of rehearing en banc.

I respectfully dissent from the denial of the petition for

rehearing en banc.

I disagree with that portion of the majority opinion which

reversed the trial court's order granting a new trial and

restored the verdict of something in excess of $200, 000.00.

In my view, the panel's holding in effect overrules a deeply

embedded rule of iaw in this circuit and ignores the teach-

ings of the Supreme Court in cases of this nature.

? Judge Gibson did not participate.

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466 F.2d 179 (1972)

The Eighth Circuit Rule.

In this circuit a “motion for new trial is addressed to

the judicial discretion of the trial judge and will not be

reversed except for a clear abuse of that discretion."

Altrichter v. Shell Oil Co., 263 F.2d 377, 380 (8th Cir.

1959) (emphasis added); Bates v. Hensley, 414 F.2d 1006

(8th Cir. 1969). The rule has also been stated that the

"granting of a new trial is a matter within the sound discre-

tion of the trial judge and unless that discretion patently

has been abused, his ruling is not subject to review."

Silverthorn v. Hennigan, 439 F.2d 704, 705 (8th Cir. 1971)

(emphasis added). The opinion in Altrichter gives some

insight as to what these words "clear abuse" mean. In

that case we held that the trial court could weigh the evi -

dence, disbelieve witnesses and grant a new trial even

where there is substantial evidence to sustain the verdict.

No inferences are required to be drawn in favor of the

verdict or the party against whom the motion is directed.

The trial judge may grant a new trial where, in his own

judgment, it is necessary to prevent a miscarriage of

justice. [note the language of Barron & Holtzoff, quoted

with approval in Altvichter, supra, at 380: "It is his

right, and indeed his duty, to order a new trial if he deems

it in the interest of justice to do so."

Examples of Facts which Clearly Distinguish This Case

from Those Cited in the Panel's.Opinion.

The panel relied upon and quoted extensively from Captain

Klein's testimony. His testimony was objected to as specula -

tive and calling for a conclusion that the fire department

would probably have stopped the fire before it caused plain -

tiffs’ losses if he had received an alarm ten to fifteen min-

utes earlier. The panel's statement that Klein's testimony

™

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A. 18

466 F.2d 179 (1972)

was not objected to is clearly wrong. Although the trial

judge overruled the objection, he assigned this ruling as

one of his grounds for granting a new trial. Captain

Klein had testified that the major portion of the fire was

in building No. 11 behind the freight loading area of that

building, that the fire was above the canopy of the north-

ernmost bridge and just starting on the bridge, and that

the bridge was not engulfed in flames at the time of the

arrival of the fire department. He further testified that

his men were putting water on one of the bridges until he

ordered them out of the area. His testimony was to the

effect that only building No. 11 was "heavily involved"

at the time of their arrival. His testimony as to whether

the bridge wason fire is controverted by the testimony of

Captain Berne of the fire department, fireman Holland,

and a railroad employee, Anielak, who had reported the

fire and arrived at the scene before the firemen. Fire-

man Holland testified that he was one of the firemen on

the ramp with the fire hose, that the water would not reach

the bridge, that the fire eventually crossed the bridge into

the buildings containing plaintiffs' insureds’ property.

Mr. Cohn, an expert witness, testified that fire started,

not in building No. 11, but “towards the east end of the

northernmost bridge." Evaluating the evidence according

to the analysis of the trial court, Captain Klein's opinion

as to whether the fire department could have stopped the

fire was based on untrue facts and was speculative and

conclusionary .

The trial court also stated that the evidence was insuf-

ficient to support a finding of negligence. Plaintiffs’

proof was to the effect that a watchman should have been

at this site because the site could not be made secure

against entry. While there is some evidence to support

this contention, much of plaintiffs' evidence relates to

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A.19

466 F.2d 179 (1972)

buildings 11 and 12. Building 12 was in reality nothing

but a wall with some Supporting timbers. There was

nothing to secure. Much of plaintiffs’ evidence tending

to show the unsecured condition of building 11 related to

the first and second floors. The first floor was in fact

a ground level railroad yard, and there was testimony that

it was not considered part of the building. The second

floor was an open loading area for trucks constructed of

steel and cencrete. It is apparently this area into which

Captain Klein drove hiscar. There was nothing to secure

except a large open area. There was ample testimony

that passageways from these areas into the buildings were

secured. Again viewing the evidence according to the

analysis of the trial court, it is difficult to see any clear

abuse of discretion in ordering a new trial on this point.

Further, a witness for one of the plaintiffs testified in

effect that after collecting the insurance on some of his

property he sold the insured goods at a price higher than

their cost. He thus showed a profit instead of a loss.

No damages should have been allowed on this point, and

the trial court's order for a new trial should be sustained

on this point.

By setting out the above, I have not implied that those

points are the only ones to be considered. Rather, they

are examples which support a finding that there was no

clear or patent abuse of discretion in ordering a new trial ./

The Supreme Court's Teachings.

The panel's opinion relies on and quotes from Tennant

Vv. Peoria & Pekin Union Ry., 321 U.S. 29, 64S.Ct. 409,

88 L.Ed. 520 (1944). Tennant, however, did not even

1 The majority's opinion finds only that "it was abuse of discretion to

grant a new trial."

'

Bea:

A.20

466 F.2d 179 (1972)

consider a motion for new trial, but involved only a judg-

ment n.O.v. granted by a court of appeals. This was an

opinion by Mr. Justice Murphy for a divided Court. Ten-

nant should be considered in the light of other Supreme

Court cases such as Fairmount Glass Works v. Cub Fork

Coal Co., 287 U.S. 474, 53S.Ct. 252, 77 L.Ed. 439

(1933); United States v. Socony-Vacuum Oil Co., 310

U.S. 150 at 247, 60S.Ct. 811, 84 L.Ed. 1129 (1940);

United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464,

90 L.Ed. 562 (1946), which did deal with motions for new

trial. See also Neely v. Martin K. Eby Const. Co., 386

U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967); Neese v.

Southern Ry., 350U.S. 77, 76S.Ct. 131, 100 L.Ed. 60

(1955).

As Justice Brandeis said in Fairmount Glass Works,

supra:

"The rule that this Court will not review the action of

a federal trial court in granting or denying a motion

for a new trial for error of fact has been settled by

a long and unbroken line of decisions; and has been

frequently applied where the ground of the motion was

that the damages awarded by the jury were excessive

or were inadequate. The rule precludes likewise a

review of such action by a circuit court of appeals."

(Footnotes omitted) 287 U.S. at 481, 53S.Ct. at 254.

In the same opinion Justice Brandeis went on to say:

"Appellate courts should be slow to impute to juries a

disregard of their duties, and to trial courts a want of

diligence or perspicacity in appraising the jury's con-

duct." dd. at 485, 53S.Ct. at 255.

A.21

466 F.2d 179 (1972)

Similarly the Court stated in United States v. Johnson,

supra, that:

"(It is not the province of this Court or the circuit court

of appeals to review orders granting or denying motions

for a new trial when such review is sought on the alleged

ground that the trial court made erroneous findings of

fact." 327U.S. at 111, 66S.Ct. at 466.

The Court then went on to conclude that:

"The circuit court of appeals was right in the first

instance, when it declared that it did not sit to try de

novo motions for a new trial. It was wrong in the

second instance when it did review the facts de novo

and order the judgment set aside." Jd. at 113, 66

S.Ct. at 467.

Conclusion .

The panel claims in its conclusion that it is hard pressed

to say that a miscarriage of justice has taken place in the

first trial. The only sure way to prevent a miscarriage

of justice in this case is to grant the rehearing and sustain

the trial court's order granting a new trial. This isa

complicated case with a lengthy record and it clearly re-

quires something more than a weighing of the evidence

when the trial court has concluded that it mistakenly admitted

testimony which could well have influenced the jury. The

effect of it cannot be ascertained except by a new trial.

The rationale of avoiding additional burdens for the

court dockets, used as one of the reasons for reversing

the new trial order, is misleading. There is no way to

predict how much additional work will be created if the

rule of this circuit in such matters is abrogated. If we

a

A.22

466 F.2d 179 (1972)

must follow the panel's new rule, it will place this court

in the role of trying cases de novo for which we are not

and cannot be equipped. Furthermore, this new appellate

capacity threatens to erode the factfinding responsibility

of the district courts.

Finally, I note that the panel's opinion finds there was

an abuse of discretion. Certainly it is not an abuse of

discretion to grant a new trial when inadmissible testi -

mony is admitted. Now we can assume that every party

litigant in a case where there is a new trial granted by

the district court will contend that there is a mere abuse

of discretion on the trial court's part; hence, the trial

court's action should be reversed and judgment entered

here.

For the reasons stated, I would grant the petition,

uphold the trial court and send this case back to that court

for a new trial.

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