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05/04/84 Carlondo Maurice Alston v. Horace Bowins

May 4, 1984





Appeal from the United States District Court for the District of Columbia.


Wright, Wilkey and Scalia, Circuit Judges. Opinion for the Court filed by Circuit Judge Wilkey.


Horace Bowins appeals from a judgment entered against him by the trial court. We affirm. I. BACKGROUND

Carlondo Alston was riding on a bus operated by the Washington Metropolitan Area Transit Authority when the bus collided with an automobile driven by appellant Horace Bowins. Alston was injured in the crash, and subsequently brought suit against both WMATA and Bowins.

At trial, Alston's counsel inexplicably failed to introduce substantial evidence against Bowins during the plaintiff's case, concentrating instead on establishing the culpability of WMATA. Bowins moved for a directed verdict at the close of the plaintiff's case. At the time Bowins sought his directed verdict, only two bits of information tending to implicate Bowins had entered evidence: Bowins' car, while in its proper lane, was "slightly" over the yellow line, *fn1 and Bowins' car appeared from the bus to be traveling at a high rate of speed. *fn2 This amounts only to a scintilla of evidence against Bowins, and the trial judge could have granted the directed verdict motion. Had the trial judge chosen to grant the motion, Alston's only remaining recourse would have been against WMATA. *fn3

The trial judge did not grant the motion. In the course of the defense phase of the trial, ample evidence implicating Bowins was presented: the fact that he admitted to having four beers shortly before the collision; *fn4 additional evidence indicating that he was "over the yellow line" at the time of the accident; *fn5 evidence that his car was "weaving" shortly before the accident; *fn6 and more detailed testimony stating that he was driving at an excessive speed, which may have indicated his car was not under proper control. *fn7 This evidence was sufficient to support a jury verdict against him, and the trial judge would have erred had he granted a directed verdict at this stage.

In closing argument, WMATA's counsel referred to Bowins as a "drunk driver." *fn8 Bowins' counsel did not object to the use of the term at that time. The jury subsequently exonerated WMATA, but found Bowins liable. *fn9 Alston was awarded $50,000 in damages. II. Directed Verdict

At the time the initial motion for a directed verdict was made, only a scintilla of evidence against Bowins had been presented, and the judge properly could have granted the motion. The judge chose not to grant the motion, however, and both defendants proceeded to present their defenses. Bowins argues that this court should review the state of the evidence at the close of the plaintiff's case, and set aside the jury's verdict if the trial judge could have granted the motion at the time it was made. *fn10

The law has long specified that appeal of a directed verdict motion is "waived" if the movant proceeds with trial. As the Supreme Court long ago explained in Bogk v. Gassert :

Without going into the question whether the motion was properly made in this case, it is sufficient to say that defendant waived it by putting in his testimony. A defendant has an undoubted right to stand upon his motion for a non-suit, and have his writ of error if it be refused; but he has no right to insist upon his exception, after having subsequently put in his testimony and made his case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony. It not infrequently happens that the defendant himself, by his own evidence, supplies the missing link, and, if not, he may move to take the case from the jury upon the conclusion of the entire testimony. *fn11

Courts facing the same issue under the Federal Rules of Civil Procedure have been uniform in following Bogk's rule that the jury should "have the right to consider the whole case." *fn12

The reasons supporting this uniform body of cases are not hard to identify. In cases involving only a single defendant, the "waiver" doctrine enunciated in Bogk applies. The directed verdict serves a single, albeit important, interest: judicial efficiency. By choosing to proceed with trial after the motion is denied, the movant "waives" the protection of that interest. The sufficiency of ...

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