General Motors Corporation v. Johnson
| Decision Date | 27 July 1943 |
| Docket Number | No. 5087,5088.,5087 |
| Citation | 137 F.2d 320 |
| Parties | GENERAL MOTORS CORPORATION v. JOHNSON. SAME v. KING. |
| Court | U.S. Court of Appeals — Fourth Circuit |
F. L. Fuller, Jr., of Durham, N. C. (R. P. Reade and William B. Umstead, both of Durham, N. C., on the brief), for appellant.
Robert A. Freeman, of Dobson, N. C., for appellee Melba King.
Wilson Barber, of Mt. Airy, N.C. (H. O. Woltz, of Mt. Airy, N. C., on the brief), for appellee Mrs. Farest Johnson.
Before PARKER, SOPER, and NORTHCOTT, Circuit Judges.
These are actions brought in the District Court of the United States for the Middle District of North Carolina, at Winston-Salem, in July, 1942, by the appellees Mrs. Farest Johnson, administratrix of the estate of Franklin J. Diamond, deceased, and Melba King, administratrix of the estate of Ores King, deceased, here referred to as the plaintiffs, against the appellant, General Motors Corporation, here referred to as the defendant, a Delaware Corporation.
The object of the actions was to recover damages for the alleged wrongful death of Diamond and King who were killed in an accident in West Virginia, in July, 1941. By agreement the two cases were heard together and in November, 1942, a trial was had before a jury. At the conclusion of the plaintiffs' evidence a motion was made on behalf of the defendant for a directed verdict, which motion was denied by the trial judge. Again at the conclusion of all the evidence a motion for a directed verdict was renewed and denied. The jury returned a verdict in the sum of $7,500 in favor of each of the plaintiffs. Upon this verdict judgments were entered and the defendant has appealed.
A number of errors were alleged as to the admission of certain evidence and as to the rejection of certain other evidence, in the course of the trial, and error is charged by the defendant in the refusal of the court to direct a verdict in its behalf.
King was driving a truck manufactured by the defendant belonging to Farest Johnson and used by the said Johnson in his lumber business. The truck, with a load of lumber, driven by the said King, who was accompanied by Diamond (both King and Diamond being employees of Johnson, the owner of the truck), was proceeding down a steep incline between the towns of Bluefield and Welch, West Virginia, traveling in the direction of Welch. The truck was being operated about the business of its owner, Farest Johnson. It is admitted that the truck was manufactured by the defendant and there is no denial of of the contention that it was owned by Johnson, and that Diamond and King were his employees and were about his business at the time of the accident.
While the truck was proceeding as aforesaid, it got out of control and crashed into a stone building near where a road leading to Bramwell, West Virginia, cuts off from the Bluefield-Welch road. As a result of the collision with the building, the plaintiffs' intestates were killed.
The truck manufactured by the defendant was purchased new on July 5, 1941, and the wreck occurred on July 16, 1941. The truck had been driven about 1,400 miles and the driver was familiar with the highway on which he was traveling. The truck was a so-called ton and a half model and was loaded with 5,000 feet of part green, part dry lumber. After the wreck, there was no evidence found of faulty brakes, steering mechanism, or gears. All tires were found intact after the wreck. The first person to arrive at the scene of the wreck (within two or three minutes) found both boys in the truck dead.
The right rear wheel and axle housing (consisting of the dual wheels, spring, hub, and right axle housing all in one complete unit) was found severed from the rest of the truck and resting between the front axle and the rear axle, and about three feet forward to where it should have been on the truck, had it not been detached. When the wreck was examined, after the load of lumber had been removed, and the right rear assembly which had become separated from the rest of the truck had been removed, it was found that 4" of the end of the axle housing on the outside, which fitted into the bell housing, and the inside of the bell housing, which formerly held the right axle housing, had a shiny, nickel-like brightness, in contrast to the color of the other metal, and showed evidence of recent wear by friction with other metal. There were found to be eight rivets which went through the ends of both the bell housing and the axle housing and all rivets were found to have been shorn and worn smooth and bright, like the ends of the axle housing and the inside of the bell housing, as described above.
There was evidence to the effect that the axle housing fitted into a sleeve or an opening in the bell or transmission housing and that when manufactured it...
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