478 F.2d 857 (5th Cir. 1973), 72-2608, Simmons v. King

Docket Nº:72-2608 [*]
Citation:478 F.2d 857
Party Name:Earl SIMMONS, Plaintiff-Appellee-Cross Appellant, v. William R. KING and Ace Freight Lines, Inc., Defendants-Appellants-Cross Appellees, Earl Dubose, d/b/a Dubose Trucking Company, Defendant.
Case Date:April 12, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 857

478 F.2d 857 (5th Cir. 1973)

Earl SIMMONS, Plaintiff-Appellee-Cross Appellant,


William R. KING and Ace Freight Lines, Inc., Defendants-Appellants-Cross Appellees,

Earl Dubose, d/b/a Dubose Trucking Company, Defendant.

No. 72-2608 [*]

United States Court of Appeals, Fifth Circuit.

April 12, 1973

Page 858

Bob Ray, Sam Wilkins, W. Edward Ellington, Lawrence J. Franck, Jackson, Miss., for appellants.

Pat H. Scanlon, Jackson, Miss., for appellee.

W. Thad Cockran, Velia Ann Mayer, Jackson, Miss., for Dubose.

Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The easiest thing in this case is how it happened. It was, or so it was thought, a simple rear-end collision at night between two heavily loaded tractor-trailer rigs on Interstate 55 near Hammond, Louisiana. But almost immediately, as a sort of land-based Donnybrook, 1 it got more and more complex.

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The upshot is that we must determine how well the Mississippi forum court did with a Louisiana diversity case involving along the way overriding Federal Seventh Amendment problems and the force of Interstate Commerce regulations. Since we find two things which affect the result as to all, we reverse and remand for a trial on liability.

Earl Simmons, the driver of the vehicle which was rear-ended instituted a suit in the Court below against William R. King, the driver of the rear-ending vehicle, Dubose 2 and Ace 3 alleging that King was the mutual and joint agent of Dubose and Ace. 4 King and Ace answered separately but through a single spokesman denying that King was negligent, was the agent of Ace 5 and pleading affirmatively that Simmons was contributorily negligent 6 and that at the time of the accident King had been the agent of Dubose. 7 Not suprisingly Dubose answered by denying that King had been his agent and pleading affirmatively that King had been the agent of Ace, that the relationship of King to Dubose had been that of independent contractor and that Simmons had been contributorily negligent. 8

The Trial Outcome

At the trial, the District Judge peremptorily instructed the jury that (i) Simmons was not guilty of any contributory negligence but (ii) to find for Simmons against King and at least one of the other two Defendants, Ace and Dubose. He left to the jury the determination as to whether Ace or Dubose or both were vicariously liable for the acts of King. The jury proceeded to find for Simmons against King and Ace in the amount of $65,000, but found in favor of Dubose.

On King and Ace's separate motions the District Judge denied the motion for a J.N.O.V. but conditioned his denial of a new trial upon Simmons accepting a remittitur of $10,000. Simmons accepted the remittitur upon the condition that none of the Defendants appeal the reduced judgment. King and Ace promptly appealed and with his condition breached Simmons cross-appealed.

Of all the parties only Dubose was happy, happy, that is, with how things turned out below, but unhappy now at the prospect that, having been somehow dragged into this appeal of Simmons vis a vis King, Ace or both, he will lose the judgment of exoneration.

What Went Wrong?

Fleeing from the burden of judgment King-Ace assert the Court below erred (1) by peremptorily instructing the jury (a) that Simmons was not guilty of any contributory negligence and (b) to find for Simmons against King and at least one of the other Defendants and (2) by failing either to instruct the jury that

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Dubose was liable as a matter of law for the negligence of King or at least submit the issue to a jury. Simmons' cross-appeal urges error (3) in directing the remittitur of $10,000 and (4) in disallowing some items of Simmons' bill of costs. We sustain (1)(a), (2) and (3) and reverse and remand for a new trial on all issues.

The Law Of Medes And Persians

The substantive law is, of course, that of Louisiana. This means that contributory negligence is a complete bar to recovery. 9 It also means that under its jurisprudence others (Ace, Dubose, or both) may be liable on civil principles akin to common law respondeat superior.

But what is not left to Louisiana or to Mississippi, the forum state, is the quantum of proof either to support or ignore a finding by a Seventh Amendment Federal jury, or the supremacy of valid regulations issued by a regulatory agency (ICC).

Boeing The Test

The propriety of the trial Court's peremptory instructions turns on the now familiar, oft-cited standard adopted by this Court en banc.

"On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence-not just that evidence which supports the nonmover's case-but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses."

Boeing v. Shipman, 5 Cir., 1969, 411 F. 2d 365.

And of course, we are often reminded (or remind ourselves as well as trial Judges) that "Issues of negligence and contributory negligence are particularly susceptible of jury determination." Taylor v. Bair, 5 Cir., 1969, 414 F.2d 815; Anderson v. Eagle, 5 Cir., 1970, 423 F.2d 81; Morvant v. Lumbermen's Mutual Casualty Company, 5 Cir., 1970, 429 F.2d 495.

How It All Happened

On the fateful night of the collision both tractor-trailer rigs involved were proceeding in a northerly direction on Interstate Highway 55 near Hammond, Louisiana. The lead vehicle, driven by Simmons, was carrying a load of building materials weighing in excess of 43,000 pounds. Simmons, admittedly aware of another vehicle behind him, testified that he was driving up the interstate at about 45 or 50 miles per hour when he saw some lights over to the right side of the road appearing as if there had been an accident. 10 He said he immediately

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pulled out a switch to activate blinking warning lights on the front and rear of his truck and pulled down the hand brake valve to start slowing down. His testimony was that he had slowed to 30 miles per hour when the collision occurred.

King, his vehicle carrying a load of sugar weighing in excess of 45,000 pounds, had been following Simmons for six or seven miles prior to the collision. According to King's testimony, upon reaching a flat, fairly straight section of the four lane highway, he began trying to pick up speed to pass Simmons' truck. He testified that he glanced in his rearview mirror but observed a car approaching to pass him in the left lane such that he was unable to enter the left lane to pass Simmons. At that point in time it was too late to avoid rear-ending Simmons. The collision knocked the building materials forward, crushing forward the cab of Simmons' truck and thereby smashing him between the steering wheel and the cab.

King's Wrong Flagrant

Except for the claim of Simmons' contributory negligence, King neither does nor can offer any explanation for his own conduct. The collision was the result (in part at least) of his flagrant fault.

Of course King began with the heavy burden from Louisiana substantive law which imposes a presumption of negligence upon the driver of the following vehicle in a rear-end collision who bears the burden of exculpating himself from this inference of negligence. Groom v. T. E. Mercer Trucking Co., La.App., 1971, 253 So.2d 586; Barnes v. Toye Brothers Yellow Cab Company, La.App., 4 Cir., 1967, 204 So.2d 83; Strother v. State Farm Mutual Automobile Insurance Company, La.App., 1970, 238 So.2d 774; Prudhomme v. Dore, La.App., 223 So.2d 474; Porter v. Barron, La.App., 185 So.2d 304; Dominique v. Insurance Company of North America, La.App., 195 So.2d 312.

King, instead of helping himself, only made matters worse. Confronted with his own testimony from a previous trial involving the property damage of the Frierson (Simmons) truck, King did not disavow that he had expressly acknowledged that because of his inattentativeness he was following too closely. 11


* * *

The Judge was clearly right in giving a peremptory instruction as to negligence against King. With respect to it the only question remaining was whether such negligence was to be visited upon Ace, Dubose, or both.

Simmons' Negligence

But it stands differently as to contributory negligence of Simmons even though the charge is thin and undoubtedly the jury would have held in

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his favor. 12 All three Defendants asserted that Simmons was contributorily negligent in operating his vehicle without proper warning lights and in stopping his vehicle suddenly without warning (see note 6 and 8, supra). The...

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