Rose v. Ruan Transport Corp.

214 F.2d 583

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 31, 1954
• Docket: 11105_1
• Status: Published

Opinions

LINDLEY, Circuit Judge.

Defendant appeals from a judgment rendered against it in plaintiff’s suit for damages for personal injuries. It urges that the verdict upon which the judgment was based was not supported by “substantial evidence”; that its evidence negated entirely the testimony of plaintiff’s witnesses and conclusively rebutted any presumption arising from the circumstances proved, and that the trial court erred in refusing to give a tendered instruction.

The facts, viewed, as they must be, in the light most favorable to plaintiff, are in brief as follows. On March 22, 1952, plaintiff, .while driving a westbound Greyhound bus on U. S. Route 30, near Wheatland, Iowa, shortly before 8 p. m. approached a curve to the left. Seeing the lights of an on-coming vehicle and thinking it was partially on his side of the road, he' turned the bus to the right, and in doing so, drove off the pavement onto the shoulder to avoid a collision. As he tried to get back on the highway, he lost control of the steering-wheel, fell off his driver’s seat and was injured.

No question is raised as to the liability of the driver of the other vehicle, a gas transport truck and trailer, for the injuries suffered by plaintiff. But defendant contends that the evidence submitted by plaintiff was wholly insufficient to support a finding that the offending truck belonged to it or was being used with its consent.

Two passengers on the bus, Mr. and Mrs. William Castle, testified in plaintiff’s behalf. Mr. Castle said that the trailer was painted white and bore in black letters on its side the name “Ruan.” His wife testified that she saw the same name on the side of the trailer; that she had seen trucks of defendant passing her home on the highway and was familiar with the type of vehicle operated by defendant. Plaintiff testified that the truck was painted red and the trailer white. One Baker testified for defendant that, on the night in question, he drove such a red truck and white trailer bearing in black the word “Ruan” over Route 30, but insisted that he passed the place of the accident some thirty minutes or more before it occurred; that he checked in at his terminal, some thirty-five miles or more away, at 9:05 p. m.; but that he stopped to eat on the way.

Upon the direct testimony of plaintiff’s witnesses that the trailer was white, the truck red, and that the word “Ruan” was on the trailer, the court permitted the cause to go to the jury. That it was sufficient to bind the defendant, we think, is obvious. Under the law of Iowa, which is applicable, proof of ownership or proprietorship justifies, in the absence of evidence to the contrary, a finding of responsibility for operation of an automobile. Curry v. Bickley, 196 Iowa 827, 195 N.W. 617; Heavilin v. Wendell, 214 Iowa 844, 241 N.W. 654, 83 A.L.R. 872; Seleine v. Wisner, 200 Iowa 1389, 206 N.W. 130. That the evidence was sufficient to justify an inference of ownership and operation is clear. Thus, in Falstaff Brewing Corp. v. Thompson, 8 Cir., 101 F.2d 301, at pages 304-305, where a collision occurred between an automobile and a motor truck and defendant denied that it was operating any vehicle at the time and place of the collision, and the identification was, as here, by the name on the truck, the court said: “To be sure, each of defendant’s drivers denied that he was driving the truck, and there was testimony that none of defendant’s trucks were in this part of the city at the time of the accident. But the jury was not required to believe this testimony, especially in view of testimony definitely identifying the accused truck as that bearing the names identifying it as defendant’s * * *. It is only when uncontradicted proof clearly and distinctly establishes a fact so that reasonable minds can draw but one inference, that the presumption disappears or is destroyed. * * * In view of the verdict of the jury, we can not say that the testimony of the witnesses who said they could read the signs on the truck on the day of the accident was incredible or unworthy of belief.” To the same effect are Indemnity Insurance Co. of N. A. v. Kellas, 1 Cir., 173 F.2d 120; Silent Automatic Sales Corp. v. Stayton, 8 Cir., 45 F.2d 471; Lukehart v. Gleason, 8 Cir., 207 F.2d 529. The last cited decision is an Iowa case.

Defendant insists that to hold the evidence sufficient to go to the jury is to pile inference upon inference. We do not so interpret the situation. We agree with the authorities cited that proof such as is presented here makes a prima facie case of ownership and operation. Both conclusions of fact spring from the same circumstances, — the presence and operation of a truck bearing defendant’s name. This is not piling inference upon inference. As the Supreme Court of Iowa said, in Seleine v. Wisner, 200 Iowa 1389, 206 N.W. 130, 131: “We have also held that an allegation of ownership carries with it an inference of law, to wit, that the car was operated by the owner or, if by some one else, that it was with the owner’s consent.” And it is permissible to draw several conclusions or presumptions of fact from the same set of facts or circumstances. Falstaff Brewing Corp. v. Thompson, 8 Cir., 101 F.2d 301.

Obviously such a prima facie case as this can be said, as a matter of law, to vanish only when rebutted by uncontradicted or invulnerable proofs. Silent Automatic Sales Corp. v. Stayton, 8 Cir., 45 F.2d 471; it is not necessarily wiped out by contradictory evidence, for the jury is not bound to accept the opposing testimony offered by defendant. Indemnity Insurance Co. of N. A. v. Kellas, 1 Cir., 173 F.2d 120. Consequently, when defendant offered in contradiction, the testimony of Baker, its former truck driver, who, on his own admission, was driving one of the company’s trucks and trailers near the place of the accident shortly before it occurred, though he said he saw no accident, the jury was charged with the obligation to determine where the truth lay. Such was its function ; it is not for us to say that it made the wrong determination.

But defendant insists that the testimony of plaintiff’s witnesses was so preposterous and so incredible that it did not justify the trial court’s submission to the jury. In support of this it points to earlier statements of the witnesses, taken by a claim agent of Greyhound, conflicting with their testimony at the trial. Whether these witnesses were credible; whether they were to be believed, in view of all the circumstances, impeaching, or otherwise, including their own explanations, was a question rightfully submitted to the triers of the facts. Only where there is a complete absence of probative facts to support the conclusion reached does reversible error appear. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916. It does not lie within our power to say, as a matter of law, that the testimony was not substantial, credible or believable. That is the function of the trier of the facts. Grip Nut Co. v. Sharp, 7 Cir., 150 F.2d 192, certiorari denied 326 U.S. 742, 66 S.Ct. 55, 90 L.Ed. 443.

Defendant complains of the refusal to give a tendered instruction in which defendant asked to charge the jury that “when any credible evidence is introduced by defendant showing it did not operate the vehicle, such presumption (of operation by defendant) vanishes entirely * * *.” Obviously the statement quoted is not sound law. The presumption of ownership and operation does not necessarily vanish upon the production of “any credible evidence to the contrary.” It vanishes only when the jury finds the contrary evidence to be of such character as to outweigh or counterbalance the prima facie case made by plaintiff. To have instructed the jury as defendant requested, would have constituted error. Furthermore the charge to the jury as a whole fully and amply covered correctly the principles governing credibility, impeachment, and plaintiff’s burden to prove the averments of his complaint.

The judgment is

Affirmed.