The Employers' Liability Assurance Corporation, Limited, Appellant, v. Mrs. Lee Madden, Appellee, 219 F.2d 205 (5th Cir. 1955)

This appeal is from a judgment against defendant-appellant, the insurer of Gluck's, Inc., a New Orleans restaurateur. Entered on a verdict finding its insured culpably negligent and awarding plaintiff $7500.00 as damages, for injuries received while returning from the rest room,¹  prepared for its patrons, to the restaurant, it presents a single question for review.

This question is whether, as claimed by appellant, the district judge erred in not directing a verdict for defendant for want of sufficient evidence to take the case to the jury.

In support of its contention, that the denial of its motion for a directed verdict was error, appellant does not approach and argue the insufficiency of the evidence by setting out the evidence on which plaintiff and the district judge relied as sufficient to take the case to the jury and then proceed to demonstrate that, viewed in the light most favorable to the plaintiff, the evidence is insufficient. Instead of doing this, it adopts an approach which puts forward as its major premise: "As this is a personal injury action with federal jurisdiction based solely on diversity of citizenship, the law of Louisiana, where the accident occurred, controls the decisions of the federal courts on the essential questions of negligence, contributory negligence, burden of proof and sufficiency of evidence"; as its minor premise: that, as matter of law, plaintiff could not have recovered, had she sued in a state court; and as its conclusion: that the federal court, therefore, was, under the Rules of Decision Act,²  and Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, bound to deny recovery here.

In support of its contention, appellant, setting out what it claims is the state of the evidence as to plaintiff's three charges of negligence, (1) the defective construction of the step down, (2) improper lighting, and (3) inadequate warning, and citing and quoting from many Louisiana cases in which, as appellant claims, the appellate courts of Louisiana have dealt with and denied recovery in suits for injuries, sustained by one on the premises of another, under circumstances in substance the same as those obtaining here, insists that, as matter of law, under the imperative teachings of these cases, Gluck's Inc. was not, plaintiff was, negligent.

With appellant's major premise, appellee wholeheartedly agrees, in deed she reenforces that agreement by pointing out that in his instructions to the jury, the trial judge so stated the substantive law of Louisiana to the satisfaction of appellant that, agreeing that the instructions were eminently fair and correct, it took then, and takes now, no exception to them.

With the correctness of appellant's minor premise, however, appellee violently disagrees. Pointing out what she regards as departures from the record in appellant's statement of the evidence, she marshalls in support evidence which she insists correctly made out a case for a jury verdict. She cites cases³  which have affirmed and reaffirmed the established doctrine in the federal courts, indeed in all jurisdictions where the common law prevails, that the juries are the judges of the credibility of the witnesses and the weight to be given their testimony, and have the right to draw all reasonable inferences therefrom. Pointing out that the Louisiana cases, on which appellant relies, decided as they were under the system prevailing in Louisiana in which appellate courts try negligence cases on the facts, were disposed of as fact cases and the courts did not, indeed did not undertake to, decide them as matter of law, she insists, that appellant is merely seeking here to thresh again old straw already threshed out in the Gillen and Wright cases note 3, supra.

We agree with appellee that this is so, if not as to every case cited, at least as to most of them, and, agreeing, we reject the contention of appellant that from them, taken singly or together, this court can deduce a rule which, applied to the facts of this case, would, as matter of substantive law, determine for us that the evidence did not make out a case for the jury.

We are also of the equally clear opinion that, following the rule controlling in the determination of the question here presented, whether a case for a jury verdict was made out, we cannot say that, as matter of law, a verdict should, on defendant's motion, have been directed.

The judgment is, therefore, affirmed.