Har-Pen Truck Lines, Inc. v. Mills

• Decision Date: 06 July 1967
• Docket Number: No. 23044.,23044.
• Citation: 378 F.2d 705
• Parties: HAR-PEN TRUCK LINES, INC., et al., Appellants, v. Frederick Allen MILLS, III, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

378 F.2d 705 (1967)

HAR-PEN TRUCK LINES, INC., et al., Appellants, v. Frederick Allen MILLS, III, et al., Appellees.

No. 23044.

United States Court of Appeals Fifth Circuit.

May 31, 1967.

Rehearing Denied July 6, 1967.

COPYRIGHT MATERIAL OMITTED

Frank C. Jones, Macon, Ga., for appellants, Jones, Sparks, Benton & Cork, Macon, Ga., of counsel.

Benjamin Smith, Jr., Leon A. Wilson, II, Waycross, Ga., Harold Pomerantz, New York City, for appellees.

Before BROWN, GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

At 9:20 p. m. on July 25, 1963, as a tractor-trailer truck with a 42,000 pound load of terra cotta pipe drove around a curve about two miles north of Waycross, Georgia, the load of pipe shifted and spilled over the side of the trailer and on to a car driving in the other direction. The falling pipe crushed the car, killing the driver, Allen Mills, and his wife, Patricia, and orphaning and injuring their three sons. The sons, together with their grandmother, Mrs. Tessie Mills, as next friend, now sue for their personal injuries and for the wrongful death of their parents.¹ After the filing of an amended pleading, the defendants stood as follows: Har-Pen Truck Lines, which contracted to haul the pipe; William Feldon, the truck driver; Pennington Trucking Company, the owner of the truck-tractor, the lessor of it to Har-Pen, and the employer of Feldon; Joiner Truck Lines, Inc., which owned the trailer; General Transfer and Storage Company, which leased the trailer from Joiner and in turn leased it to Har-Pen; and Oconee Clay Products Division of Griffin Pipe Products Company, which loaded the pipe and was the shipper. The plaintiffs also named Canal Insurance Company, Har-Pen's insurance carrier, as a defendant.

The jury found the defendants liable. It awarded $100,000 damages for each wrongful death and $2,500 for the personal injuries of the plaintiffs. On appeal, defendants admit their negligence and the lack of negligence of the Mills family; they argue that there was insufficient evidence to support the two $100,000 verdicts for wrongful death, that certain expert testimony was erroneously admitted, and that a mistrial should have been granted because of prejudicial statements during final argument by plaintiffs' counsel.

We find no error, and affirm.

I. The liminal problem of jurisdiction does not long detain us. This contention is not only peripheral, but also insubstantial.

Defendants argue that the court should have submitted to the jury the issue of the citizenship of plaintiffs. Unless the trial judge wishes to use the jury advisorily, however, this is simply not a jury issue. Hardin v. McAvoy, 5 Cir. 1955, 216 F.2d 399; Seideman v. Hamilton, 3 Cir. 1960, 275 F.2d 224, cert. denied, 1961, 363 U.S. 820, 80 S.Ct. 1258, 4 L.Ed.2d 1517; see First National Bank in Greenwich v. National Airlines, Inc., 2 Cir. 1961, 288 F.2d 621, cert. denied sub nom. Kessler v. National Airlines, Inc., 1961, 368 U.S. 859, 82 S.Ct. 102, 7 L.Ed.2d 57. Further, every shred of evidence concerning the residence of the plaintiffs tended to show that at the relevant time they resided in either Florida or New York. The Mills family had lived in New York until April or May of 1963, when they moved to Florida. When the accident occurred, in late July, the family was again changing its residence from Florida to New York. Either the plaintiffs were residents of New York if they had not intended to remain permanently in Florida, or else they had become residents of Florida when they moved there. Defendants' counsel's cross-examination of Frederick Mills III, the eldest of the three sons, served only to underline these facts. Nowhere did defendants adduce anything to show otherwise. The trial judge, in rendering judgment, tacitly asserted that he found the requisite diversity. From the state of the evidence, an explicit finding would seem superfluous.²

"A court that renders judgment against a defendant thereby tacitly asserts, if it does not do so expressly, that it has jurisdiction over that defendant." Chicago Life Insurance Co. v. Cherry, 1917, 244 U.S. 25, 29, 37 S.Ct. 492, 493, 61 L.Ed 966, 967; Jackson v. Southern Railway Company, 5 Cir. 1963, 317 F.2d 532, cert. denied, 1963, 375 U.S. 837, 84 S.Ct. 77, 11 L.Ed.2d 65.

II. The defendants also argue that all defendants not in privity with the Canal Insurance Company were misjoined. This argument is based on two cases in the Georgia courts concerning 20 Ga.Code Ann. § 68-612, which reads in part:

"It shall be permissible under this Chapter for any person having a cause of action arising hereunder in tort or contract, to join in the same suit the motor carrier and its surety, in the event a bond is given. If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action whether arising in tort or contract."

This statute permits a motor carrier and its insurance company to be joined in the same suit as defendants. The two Georgia cases, Dishinger v. Suburban Coach Company, 1951, 84 Ga.App. 498, 66 S.E. 2d 242, and Reeves v. McHan, 1948, 78 Ga.App. 305, 50 S.E.2d 787, hold that where a motor carrier and its insurance company are joined as defendants, no other defendant may be joined who is not in privity with the insurance company. These cases cite for authority Ga.Code Ann. § 3-113, which reads:

"3-113. Different claims may be joined, when — All claims arising ex contractu between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be joined. The defendant may also set up, as a defense, all claims against the plaintiff of a similar nature with the plaintiff\'s demand."

This statute is held by the Georgia courts to prohibit the joining of contract and tort claims in the same action. Insofar as it does prohibit such joinder, however, it is not binding on federal courts in diversity cases. We have held that the question of which claims may be joined in a civil action is a federal one, to be governed by the Federal Rules. In Doyle v. Stanolind Oil & Gas Co., 5 Cir. 1941, 123 F.2d 900, 903, Judge Hutcheson said:

"We agree with appellees. The question of joinder is purely one of procedure and is controlled by the federal rules. The Texas authorities appellants cite are without application. Rule 20(a), Permissive Joinder, in the largeness and comprehensiveness of its terms is peculiarly applicable here. Plaintiffs here, in the very terms of the rule, assert right to relief jointly and severally, or in the alternative, in respect of a series of transactions or occurrences and questions of law and of fact common to all of them arise in the action. It would be difficult to imagine a more apposite case."

See Texas Employers Insurance Ass'n v. Felt, 5 Cir. 1945, 150 F.2d 227, 231, 160 A.L.R. 931. The ascendancy of the Federal Rules over contrary state practice is emphasized by Hanna v. Plumer, 1964, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8. In that case (which held valid in a diversity case a service of process under Rule 4(d) (1) which would have been invalid under state law) the Supreme Court stated that it was a "fundamental" error to assume that "the rule of Erie R. Co. v. Tompkins 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 constitutes the appropriate test of the validity and therefore the applicability of a Federal Rule of Civil Procedure." The Court also said: "To hold that a Federal Rule of Civil Procedure must cease to function whenever it alters the mode of enforcing state-created rights would be to disembowel either the Constitution's grant of power over federal procedure or Congress' attempt to exercise that power in the Enabling Act." 380 U.S. at 473-474, 85 S.Ct. at 1145, 14 L.Ed.2d at 18. We have previously recognized the strength of this holding. Bryan v. Kershaw, 5 Cir. 1966, 366 F.2d 497; Follenfant v. Rogers, 5 Cir. 1966, 359 F.2d 30. See Lumbermen's Mutual Casualty Co. v. Wright, 5 Cir. 1963, 322 F.2d 759; United States v. 60.14 Acres of Land, 3 Cir. 1966, 362 F.2d 660. Cf. Monarch Ins. Co. of Ohio v. Spach, 5 Cir. 1961, 281 F.2d 401.

The Rules allow joinder in such a case as the present; indeed in order to prevent costly, slow multiplicitous litigation (with the danger of inconsistent results), they demand it. The Supreme Court has recently held that "Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged." United Mine Workers of America v. Gibbs, 1966, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218, 227. Against such powers and policies, the state restriction on joinder cannot stand.

III. The defendants claim that the $100,000 verdict for the wrongful death of Mr. Mills was excessive.

The only evidence concerning Mr. Mills's earnings is from Social Security records. This is apparently an incomplete record, showing intermittent earnings from 1956. This evidence shows that Mills's earnings fluctuated. In the last six weeks or so before his death, Mills earned at about the rate of $616 per month. During the last quarter of 1962, he earned at the rate of about $754 per month. Other periods show lesser earnings. In addition, there was testimony by Edward H. Walsh, an associate of Mills during Mills's last employment. Walsh testified that Mills was a competent salesman who could earn $15,000 a year, and that Mills had potential for higher achievement as a manager (at $25,000) and as an executive (at $50,000).

Mills was 48 when he died. The defendants introduced into evidence a mortality table indicating that Mills's life expectancy was 22.5 years; they also introduced an annuity table for computation of the present value of Mills's life. The annuity table discounts at a rate of 7 per cent in finding present value. These tables are suggested by Georgia...