Stancill v. McKenzie Tank Lines, Inc.

• Decision Date: 27 June 1974
• Docket Number: No. 73-3081 Summary Calendar.,73-3081 Summary Calendar.
• Citation: 497 F.2d 529
• Parties: Mrs. Harvey STANCILL, Plaintiff-Appellant, v. McKENZIE TANK LINES, INC., and Carriers Insurance Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.2d 529 (1974)

Mrs. Harvey STANCILL, Plaintiff-Appellant, v. McKENZIE TANK LINES, INC., and Carriers Insurance Company, Defendants-Appellees.

No. 73-3081 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

June 27, 1974.

COPYRIGHT MATERIAL OMITTED

Floyd M. Buford, Macon, Ga., for plaintiff-appellant.

Albert P. Reichert, Jr., G. Boone Smith, III, Macon, Ga., for defendants-appellees.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

WISDOM, Circuit Judge:

In this diversity action, Mrs. Harvey Stancill appeals from a jury verdict in favor of the defendants-appellees, rendered after trial in the United States District Court for the Middle District of Georgia. The jury found that McKenzie Tank Lines, Inc. was not liable to Mrs. Stancill for the death of her parents caused by a collision between their pickup truck and a tank truck driven by a McKenzie employee, Jimmy Whitely. In support of her appeal, Mrs. Stancill alleges several grounds of error, including insufficiency of the evidence, improper consideration of the defendant's counterclaim, inconsistent answers to the special interrogatories submitted to the jury, and improper admission of expert testimony offered by the defense. We affirm.

I

At about 4:30 P.M. on December 13, 1971, Jimmy Latrell Whitely, a truck driver employed by McKenzie Tank Lines, Inc., was proceeding North on U. S. Highway 441, a few miles south of Homerville, Georgia, in a tank truck owned by his employer. Driving conditions and visibility apparently were excellent. Highway 441 is a two-lane paved road, and was in a good state of repair, for it had been recently resurfaced. There was no center line.

As he approached the intersection of Highway 441 and Shiloh Road, Whitely observed a pick-up truck, travelling at about ten to fifteen miles per hour, enter Highway 441 from Shiloh Road and begin to make a left turn in front of him. The pick-up truck, driven by Obediah Carver, the appellant's father, did not stop at the stop sign controlling access from Shiloh Road onto Highway 441, nor did it yield the right of way to the tank truck driven by Whitely. In an attempt to avoid striking the Carver vehicle, Whitely pulled into the left, or southbound lane, the lane the turning pick-up was entering. His attempt was unsuccessful, and his truck struck the left front side of the Carver truck, turning it completely around. Mr. Carver died instantaneously and Mrs. Carver, a passenger in the pick-up, died shortly thereafter. Although the tank truck swerved into a ditch and overturned, Whitely was only slightly injured.

Mrs. Stancill brought this action against McKenzie and its insurer to recover damages for the death of her parents, and McKenzie counterclaimed for the damage to the tank truck and the loss of its use. At trial, extensive evidence was introduced as to the point of impact, whether Whitely had had sufficient room in his own, or northbound, lane to avoid the accident, the speed of the vehicles, and the like. Based on this evidence, and in answer to special interrogatories, the jury concluded that both Whitely and Mr. Carver had been negligent, but that only Mr. Carver's negligence was a proximate cause of the accident. The jury thus rendered a verdict for the defendants, but in answer to the interrogatory concerning damage to the truck, and its fair rental value, concluded that the appellee had not been damaged, and made no award on its counterclaim.

II

Mrs. Stancill's first contention is that the district court erred in permitting McKenzie to introduce evidence in support of its counterclaim as to the damage to the truck driven by Whitely, and its fair rental value. Under Georgia law, the appellant urges, the counterclaim could not have been legally imposed against her, because the claim for damage to McKenzie's truck was a debt of her parents' estate and, therefore, cannot limit her right to recover for their wrongful death. See Georgia Code Annotated, Sections 105-1305, 113-1509 (1968). Since the evidence introduced in support of this improper counterclaim clearly confused and misled the jury, Mrs. Stancill argues, the error is prejudicial and mandates reversal.

We are by no means certain that a counterclaim of this type is the sort of "debt" which, under Section 105-1305, may not be asserted in a wrongful death action. Georgia does permit a lawsuit arising out of acts of a decedent to be brought against his heirs at law where there has been no administration of the estate. Hughes v. Cobb, Ga.Sup.1942, 195 Ga. 213, 23 S.E.2d 701, 703. Here, there had been no administration of the estate, and Mrs. Stancill was the only heir at law. Necessarily, a separate action brought by McKenzie would have named Mrs. Stancill as defendant. Thus, whether Georgia courts would endorse the unnecessary circuity that separate actions on these claims would entail is unclear; federal courts will not.

Indeed, such a multiplicity of actions is precisely the evil the federal approach to counterclaims was fashioned to avoid. See 6 C. Wright & A. Miller, Federal Practice and Procedure, Section 1409, at 37-38. Far from being improper, the counterclaim advanced by the appellees was compulsory. Had it not been advanced here, it would have been lost as a federal cause of action forever. See Wright & Miller, supra, at 37. A counterclaim is compulsory under the Federal Rules of Civil Procedure, "if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claims and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction." Fed.R.Civ.P. 13(a).¹ As we noted above, Mrs. Stancill is the sole heir at law of her parents. Thus, only she and McKenzie Tank Lines were necessary parties to the counterclaim. It can hardly be doubted that a single occurrence is the wellspring of both the appellant's and the appellee's claims. The challenged counterclaim was properly asserted and the evidence supporting it properly introduced.

Mrs. Stancill also maintains that the jury was confused and misled by the presence of the counterclaim, but offers no evidence that the jury was improperly influenced by the testimony of the one witness who established McKenzie's damages. Moreover, although she suggests that the interrogatories concerning the counterclaim confused the jury and may have affected its determination of the liability issues, we find no reason to believe this was the case. The form of the special interrogatories required the jury to respond to the negligence and causation issues before it considered the question of damages. Even had the counterclaim been improper, then, it could not have influenced the jury's decision on the appellant's complaint.

III

The contention to which we turn now is more complex, for Mrs. Stancill argues that the answers to several of the special interrogatories submitted to the jury are inconsistent with each other and with the general verdict, and that a new trial is required. More specifically, the appellant urges that the verdict denying any recovery to McKenzie Tank Lines, Inc., and the answers to Interrogatories 8 and 9, showing that McKenzie was not damaged, are inconsistent with the answers to Interrogatories 3 and 4 in which the jury found that Obediah Carver was negligent and that his negligence was the proximate cause of the collision.² In the face of a finding of liability and an uncontested demonstration of damages, Mrs. Stancill maintains, McKenzie Tank Lines, Inc. should have received an appropriate monetary award. Thus, the failure of the jury to award damages to McKenzie gives rise to an impermissible inconsistency which, under Fed.R.Civ.P. 49(b), requires a new trial.

Rule 49(b) does endorse a new trial as one option open to a trial court when an actual inconsistency does occur.³ But in determining whether Rule 49(b) requires a new trial in this case, a number of serious questions arise, not the least of which is whether an "inconsistency" exists at all. The answers are not inconsistent as a matter of logic: a finding that Mr. Carver's negligence caused the accident is not inconsistent with a conclusion that McKenzie suffered no damages and, therefore, should receive no award. One or more of these answers may be erroneous, but they are not inconsistent.

This case is not analogous to those cited by the appellant, where, after finding the defendant's conduct to have been nonnegligent or that both parties were at fault, the jury nevertheless proceeds to hold the defendant liable and award damages to the plaintiff. See Nordmann v. National Hotel Co., 5 Cir. 1970, 425 F.2d 1103; Welch v. Bauer, 5 Cir. 1951, 186 F.2d 1002. Such answers are legally and logically irreconcilable, hence truly inconsistent. What is involved here is not so much an allegation of inconsistency as one of inaccuracy; two of the jury's answers, and its general verdict, though correct in legal theory, neglect to take cognizance of the uncontested facts as to the defendant's damages. What must be determined, then, is whether this sort of "inconsistency" requires a new trial.

At least one decision of this Court holds that an incorrect verdict may be treated as analogous to an inconsistent one, and a new trial ordered on all issues. See Hatfield v. Seaboard Air Line Railroad Co., 5 Cir. 1968, 396 F.2d 721, 724. Three important factors distinguish Hatfield from this controversy, however, and convince us that a new trial is not required here.

First, the panel in Hatfield believed that the award of nominal damages there evidenced an improper jury compromise on the liability issue, "which could not help but affect the verdict as a whole", 396 F.2d at 724, and accordingly ordered a new trial on all issues. Here, however, we are not persuaded by Mrs. Stancill's assertion that the jury's failure to award damages to McKenzie on its counterclaim necessarily signals a compromise. The jury's...