[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________  ELEVENTH CIRCUIT
                                                           JAN 22, 2008
                            No. 07-10938                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                  D. C. Docket No. 03-00671-CV-1-CG

JOHN HANES,

                                                           Plaintiff-Counter
                                                       Defendant-Appellant,

                                 versus

GREYHOUND LINES, INC.,

                                                        Defendant-Appellee,
JAMES DUNCAN,

                                                         Defendant-Counter
                                                         Claimant-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Alabama
                     _________________________

                           (January 22, 2008)

Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:

      John Hanes appeals the district court’s denial of his renewed Rule 50

motion for judgment as a matter of law and alternative Rule 59 motion for new

trial. First, he claims the district court should have granted his Rule 50 motion

because, as a matter of law, (1) Appellee James Duncan committed assault and

battery against him and did not act in self defense, (2) Appellee Greyhound, a

common carrier, is strictly liable for Duncan’s torts, and (3) Greyhound is liable to

Hanes due to its spoliation of evidence. Second, Hanes contends his Rule 59

motion should have been granted because the district court erred in excluding two

pieces of evidence and denying his Rule 15(b) motion to amend his complaint to

assert a negligent hiring claim against Greyhound.

I. DENIAL OF RULE 50 MOTION FOR JUDGMENT AS A MATTER OF LAW

      We review the district court’s denial of a Rule 50 motion de novo. Chaney

v. City of Orlando, 

, 1227 (11th Cir. 2007). In considering a motion

for judgment as a matter of law, we must determine “whether the facts and

inferences point so overwhelmingly in favor of the movant . . . that reasonable

people could not arrive at a contrary verdict.” Roboserve, Ltd. v. Tom’s Foods,

Inc., 

, 1448 (11th Cir. 1991). We must view the evidence in the

light most favorable to the non-moving party. Daniel v. City of Tampa, 

546, 549 (11th Cir. 1994).

      After carefully reviewing the record and the district court’s order, we

conclude the district court did not err in denying Hanes’ Rule 50 motion. The

facts were hotly contested in this case, and over the course of the five-day trial,

conflicting accounts of the incident in question were presented to the jury.

Appellees put forth sufficient evidence to create a jury issue as to whether Duncan

assaulted and battered Hanes or acted in self-defense. Viewed in the light most

favorable to Duncan and Greyhound, the evidence at trial included testimony that

Hanes cursed and used a racial slur against Duncan, approached Duncan, and spat

in his face. Duncan testified he felt threatened and hit Hanes to defend himself.

There was substantial evidence presented to the jury to support its concluding

Duncan acted in self-defense, and the district court was correct to refrain from

substituting its judgment for that of the jury.

      Hanes is also not entitled to judgment as a matter of law based on

Greyhound’s purported common carrier liability. As a common carrier,

Greyhound is liable for an assault and/or battery committed by one of its

employees. Birmingham Ry. & Elec. Co. v. Baird, 

, 459 (Ala. 1901).

However, an employee of a common carrier has the right to defend himself. 

The jury found Duncan acted in self-defense when he hit Hanes, and this

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finding was supported by substantial evidence. Greyhound cannot bear liability as

common carrier when the jury found Duncan acted in self-defense.

      Similarly, Greyhound’s alleged spoliation of evidence does not entitle

Hanes to judgment as a matter of law. Hanes claims spoliation carries with it a

presumption the destroyed evidence would have established liability on the part of

Greyhound, and this presumption, coupled with the facts of the case, should have

led the district court to grant his Rule 50 motion. At Hanes’ request, the court

instructed the jury it could infer liability on Greyhound’s part if it felt the evidence

supported the conclusion Greyhound had wrongfully destroyed evidence.

Apparently, the jury felt either the evidence did not support Hanes’ allegations of

spoliation or the inference of Greyhound’s liability was overcome by the other

evidence presented at trial. Either way, the jury’s determination should not be

overturned. The district court did not err in denying Hanes’ Rule 50 motion.

             II. DENIAL OF RULE 59 MOTION FOR NEW TRIAL

      The district court denied Hanes’ Rule 59 motion on two grounds. First, the

court determined it did not err in its evidentiary rulings, and to the extent there

was error, it was harmless. Second, the court found Hanes’ challenge to its denial

of his Rule 15(b) motion was not a basis for granting him a new trial, since

whether to allow a party to amend his pleadings is discretionary. We review the

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district court’s denial of a Rule 59 motion for abuse of discretion. Ard v. Sw.

Forest Indus., 

, 520 (11th Cir. 1988). Our review of the record and

the district court’s order leads us to conclude the district court did not err in

denying Hanes’ motion.

      The evidentiary rulings in question involve an accident report prepared by

Greyhound manager Matthew Hoffman (Plaintiff’s Exhibit 31) and Greyhound

Driver Manager Travis Lakin’s written memorialization of the termination

meeting he had with Duncan after the incident (Plaintiff’s Exhibit 37). The district

court excluded both of these documents on hearsay grounds. This determination

was within the district court’s discretion. Even if the court erred in its

determination, any error was clearly harmless. The information in the documents

was cumulative, as the authors of both documents testified at trial about what they

observed and wrote. Thus, the district court did not abuse its discretion in denying

Hanes’ new trial motion based on the alleged evidentiary errors.

      As to the Rule 15(b) motion, the decision whether to allow the amendment

of pleadings at the conclusion of a trial is within the discretion of the trial court.

Borden, Inc. v. Fla. E. Coast Ry. Co., 

, 758 (11th Cir. 1985).

However, if an issue is tried by express or implied consent of the parties, it shall

be treated as if it had been raised in the pleadings. 

close of all

                                            5
evidence, Hanes sought to amend his pleadings to include a negligent hiring claim.

Greyhound objected to Hanes’ proposed amendment, arguing the amendment

would be prejudicial, since Greyhound did not have an opportunity to explore the

claim through discovery. While Hanes did introduce through direct examination

of Duncan evidence that Duncan had been terminated from previous employment,

the record does not establish Greyhound consented to the negligent hiring claim

being tried. Thus, the district court acted within its discretion in concluding

Hanes’ challenge to the denial of his Rule 15(b) motion did not warrant a new

trial.

         AFFIRMED.




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