234 F.2d 81 (9th Cir. 1956), 14468, Siebrand v. Gossnell

Docket Nº:14468.
Citation:234 F.2d 81
Party Name:P. W. SIEBRAND & Hiko Siebrand, doing business as Siebrand Bros., Circus and Carnival, Appellants, v. George F. GOSSNELL and Estella Gossnell, Appellees. S. J. CARROLL, Appellant, v. George F. GOSSNELL and Estella Gossnell, Appellees.
Case Date:May 23, 1956
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 81

234 F.2d 81 (9th Cir. 1956)

P. W. SIEBRAND & Hiko Siebrand, doing business as Siebrand Bros., Circus and Carnival, Appellants,

v.

George F. GOSSNELL and Estella Gossnell, Appellees.

S. J. CARROLL, Appellant,

v.

George F. GOSSNELL and Estella Gossnell, Appellees.

No. 14468.

United States Court of Appeals, Ninth Circuit.

May 23, 1956

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terminate liability of owners on judgment rendered against them.

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W. Francis Wilson, Kent A. Blake, Richard F. Harless, Phoenix, Ariz., for appellants Siebrand.

Howard W. Gibbons, Phoenix, Ariz., for appellant Carroll.

William P. Mahoney, Jr., Joseph C. Raineri, Daniel F. Cracchiolo, Deputy County Atty., Phoenix, Ariz., for appellees.

Before ORR and LEMMON, Circuit Judges, and JAMES M. CARTER, District Judge.

JAMES M. CARTER, District Judge.

This case arises under the diversity jurisdiction of the district court, and presents various problems in the law of negligence, including particularly the effect of the return of separate verdicts against certain defendants and alleged apportionment of a verdict between such defendants.

Appellees George F. Gossnell and Estella Gossnell, husband and wife, and hereinafter called the Gossnells, were travelling by automobile on the highway near Tempe, Arizona, on February 20, 1953. A truck operated by appellant Carroll, and belonging to appellants, P. W. Siebrand and Hiko Siebrand, hereafter called Seibrand Bros., was travelling in an opposite direction. As the parties approached each other, a trailer being pulled by the truck became disconnected, crossed the highway, and ran head-on into the Gossnell car, causing damage thereto and personal injuries to the Gossnells.

The Gossnells, citizens of Iowa, brought action in the district court against Seibrand Bros. and Carroll, citizens of Arizona. Seibrand Bros., and Carroll filed separate answers and were represented by different counsel. The case was tried to a jury. Separate verdicts were asked for by Siebrand

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Bros., and without objection were given to the jury. The jury returned a verdict against Carroll for $100 and against Siebrand Bros. for $95, 000. The verdicts were entered without objection.

Thereafter, Siebrand Bros. moved for a new trial and moved 'to strike from the verdict' against them, all sums in excess of $100, Carroll claimed tender of the $100 to Gossnells and their refusal to accept it and tender to the clerk, and moved that the judgment against him be satisfied. The trial court denied all three motions. Within time this appeal was taken by appellants on a joint record. Separate briefs were filed.

The Carroll Appeal.

Carroll appealed only from the order denying his motion to satisfy the judgment for $100 against him. He did not appeal from the judgment entered on the verdict. Sec. 1291, U.S.C.A., Title 28 provides this court 'shall have jurisdiction of appeals from all final decisions of the district courts of the United States * * *'. The 7th Circuit, in Hatzenbuhler v. Talbot, 7 Cir., 1942, 132 F.2d 192, has held that an order denying a motion to satisfy a judgment is not a final decision of the district court and not appealable. Lillie v. Dennert, 6 Cir., 1916, 232 F. 104, held that such an order was appealable. In Hatzenbuhler the judgment was not appealed from and apparently had become final before the motion to satisfy was made. In Lillie it is clear that the judgment had become final before the motion to satisfy. In our case the judgment of the district court was not final and was in fact appealable when the order in question was made. Our case differs therefore from each of the above cases. Clearly, here the order on the motion was not a final order. Further motions might have been made, acted on and still the entire record would have come up on appeal. The statute, § 1291, U.S.C.A., Title 28, is based on the logic that there should not be piecemeal appeals and that on an appeal from a final judgment, the earlier rulings, though not appealable in themselves, may be reviewed. The order in question is not a final order and the Carroll appeal is dismissed.

The Siebrand Bros. Appeal.

Siebrand Bros. present nine contentions by their appeal, viz.:

1. The doctrine of res ipsa loquitur does not apply;

2. The master-servant relationship, between Siebrands and Carroll was not proved;

3. The amount recovered as actual or compensatory damages against a servant is the limit of recovery against the master where the liability of the master is derivative;

4. The amount of damages to be assessed against two joint tortfeasors cannot be apportioned, but must be in the same amounts for all such tortfeasors;

5. The verdict was excessive;

6. The admission of incompetent and immaterial evidence constituted reversible error;

7. A statement by a member of the partnership, not acting for the firm on the occasion in question, is not admissible to bind the partnership or other partners;

8. The sharing of losses as well as profits is necessary to constitute a joint venture;

9. The Carroll judgment was or should have been satisfied and therefore the Siebrand judgment was satisfied.

1.

Res Ipsa Loquitur.

Seibrand Bros. contend that the doctrine of res ipsa loquitur was improperly applied in this case and rely on Stewart v. Crystal Coca-Cola Bottling Co., 1937, 50 Ariz. 60, 68 P.2d 952 and Sawyer v. People's Freight Lines Inc., 1933, 42 Ariz. 145, 22 P.2d 1080. Neither are controlling. The first concerned a breaking bottle, previously placed by plaintiff in an ice box; and the second concerned a collision between a horse upon which plaintiff was riding and a truck of the

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defendant. Both rest on the principle that the doctrine does not apply when the accident could have happened from various causes, some of which were unrelated to defendant's conduct. 1

Here the cause of the accident was clear. The trailer became disconnected and crossed into the path of Gossnells' car. The causation was clear and a duty rested on defendants to explain the happening.

The rule of res ipsa loquitur is one of general application. This Circuit, in United States v. Johnson, 1950, 181 F.2d 577, 582, quoted the standards for application of the rule as set out by Wigmore.

'* * * '(1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. It may be added that the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.' (Wigmore on Evidence, Third Ed., Sec. 2509.) * * *.'

United States v. Hull, 1 Cir., 1952, 195 F.2d 64, at page 66, states:

'* * * The use of the Latin phrase 'res ipsa loquitur' in this connection may be unfortunate, as suggesting that some exotic doctrine is involved. It is nothing more than a case of circumstantial evidence, where plaintiff has proved enough 'to get to the jury', and where the inference of negligence, though not necessarily a required one, is a permissible one on the balance of probabilities. See Prosser on Torts § 43 (1941); Sweeney v. Erving, 1913, 228 U.S. 233, 238-240, 33 S.Ct. 416, 57 L.Ed. 815. * * *'

Stewart v. Crystal Coca-Cola Bottling Co., supra (50 Ariz. 60, 68 P.2d 954), shows Arizona's view of the elements of res ipsa loquitur. 'This rule is merely one of evidence and is applicable only when the instrumentality causing the injury is under the control of the defendant and the accident is of such a character that in the ordinary course of events would not happen if those having control of it used due care. * * *' The plaintiff is not 'excused from proving negligence * * * the purpose of the rule * * * is to aid the plaintiff in a proper case in making this showing by supplying a sufficient proof of negligence to require a defendant claiming that the accident did not occur through any fault of his to produce evidence to show this * * *'. 68 P.2d at page 954. 'It is only where the existence of negligence is a more reasonable deduction from the facts shown that a plaintiff is permitted to call this rule to his aid.' 68 P.2d at page 956.

These statements square with Wigmore, and the quote for United States v. Hull, supra, and indicate that Arizona follows the general principles used by other jurisdictions in the application of the doctrine. We conclude that this case was a routine one for the application of res ipsa loquitur, and we find no error in this respect.

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2, 3, 4.

Master and Servant; Joint Tortfeasors; Apportionment of Damages.

Probably the most important and troublesome problem in the case arises from the verdicts returned by the jury. The trial court submitted to the jury two pairs of verdicts, in the first pair, one for plaintiffs against Siebrand Bros., in a blank amount, and one for Seibrand Bros., against plaintiffs; and in the second pair, one for plaintiffs against Carroll in a blank amount, and one for Carroll against plaintiffs. It was conceded on argument before this court that Siebrand Bros., requested the separate verdicts. In the instructions to the jury, the court called attention...

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