Blue Valley Creamery Co. v. Cronimus

• Decision Date: 09 November 1937
• Citation: 270 Ky. 496,110 S.W.2d 286
• Parties: BLUE VALLEY CREAMERY CO. v. CRONIMUS.
• Court: Kentucky Court of Appeals

110 S.W.2d 286

270 Ky. 496

BLUE VALLEY CREAMERY CO. v. CRONIMUS.

Court of Appeals of Kentucky

November 9, 1937

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by the Blue Valley Creamery Company against C. H. Cronimus wherein defendant filed a counterclaim. From a judgment for defendant on his counterclaim and dismissing plaintiff's petition, plaintiff appeals.

Affirmed.

Davis Boehl, Viser & Marcus and Ropke & Ballantine, all of Louisville, for appellant.

Trabue, Doolan, Helm & Helm and Selligman, Goldsmith, Everhart & Greenebaum, all of Louisville, for appellee.

BAIRD Justice.

The Blue Valley Creamery Company, a corporation, instituted an action in the Jefferson circuit court against C. H. Cronimus, seeking a judgment in the sum of $250 for damages to its truck resulting from the alleged negligence of an agent operating a truck for him on the streets of the city of Louisville, Ky. by colliding with and damaging its truck. Also, it sought the further sum of $50 for loss of the use of its truck, amounting in the aggregate to $300. Cronimus, by answer and counterclaim, denied the negligence claimed by the creamery company and the damages claimed by it, but alleged that his truck was damaged by the collision on account of the negligence of the agent in operation of the creamery company's truck to the sum of $350, and the further sum for the loss of the use of its truck during the time it was being repaired in the sum of $50, making a total of $400. A trial was had, resulting in the dismissal of the creamery company's petition, with a judgment for Cronimus on his counterclaim for $284.04 with 6 per cent. interest from the 23d day of June, 1936, until paid, and his costs expended. From that judgment, this appeal follows.

The facts are, that on or about the 4th day of March, 1935, at or near the intersection of Twenty-Third street and Greenwood avenue, in the city of Louisville, Jefferson county, Ky. the Blue Valley Creamery Company was operating its truck in a southwardly direction on Twenty-Third street, when at the same time and place C. E. Cronimus was operating his truck. The trucks collided and were both damaged by the collision. Each claimed that the damage was caused by the negligence and carelessness of the agents of the other operating the trucks. In addition to the damages to the truck, Fred Bohn, the agent and operator of the truck of Cronimus, was injured. There was also riding in the same truck of Bohn, Harold E. Eastin, who also was injured. From this collision, three suits were instituted. Fred Bohn, on the 13th day of May, 1935, filed suit against the Blue Valley Creamery Company for personal injuries. On November 16, 1935, Harold E. Eastin filed suit against it in the Jefferson circuit court for personal injuries. The two suits were tried together, presided over by Judge B. H. Farnsley. Each party claimed that the injuries to himself resulted from the negligence of Herbert O. Jenkins, the agent operating at the time the truck owned by the Blue Valley Creamery Company. In that action the creamery company denied that the injury was caused by the negligence of Jenkins, but alleged that it was solely the negligence of Fred Bohn, the agent of Cronimus, the defendant in this action; and, that Fred Bohn contributed to the negligence of Jenkins to such an extent that his contributory negligence was the proximate cause of the injury. The result of these actions was a judgment in favor of both Fred Bohn and Harold E. Eastin.

Before entering into a discussion of the questions involved, we must say that the proceeding here is not only novel, but unprecedented. However, the purpose was to correct what the trial court considered a long-followed error in proceedings of this kind. The trial court, after the jury had been selected, impaneled, and sworn, and the case stated by counsel for the respective parties on his own motion, repaired with counsel for the plaintiff and defendant to the judge's chambers. There the court announced to the attorneys, but not within the hearing of the jury: "That the fact being that the suits of Bohn and Eastin that had been tried in the court of Judge Farnsley against the creamery company, the plaintiff in this action, and which suits were heard together, and involved primarily a question of responsibility for the collision between the trucks of the parties hereto, each seeking against the other damages to their respective trucks by claim and counter claim, that at that time the present suit was pending in his court; that he on his own motion, had made the record in the Bohn and Eastin cases parts of this record and had also prepared an opinion, which was filed June 13, 1936, and made a part of the record. It was his judgment that the question as to the responsibility for the collision between the trucks in the instant action was adjudicated and determined in those actions; that the trial of those two cases demonstrated that the collision was caused by the negligence of the driver of the creamery company's truck, the plaintiff in this action; that all parties involved were in his judgment in privity."

He then announced: "That he would dismiss the petition of the plaintiff creamery company and would only submit to the jury the question as to the damages incurred by Cronimus on his counter claim as to the amount of damages he had sustained to his truck."

Thereupon the court, on return from its chambers, said to the jury: "This is the case of the Blue Valley Creamery Company against Cronimus, doing business as the Motor Convoy, the plaintiff claiming damages to an automobile truck owned by it, claiming that the defendant was responsible, or the defendant's agent was responsible for the collision in which that truck was damaged. The defendant claims that the plaintiff's agent was responsible for the collision, and he seeks damages on a counter claim. There were several suits growing out of this collision. I am holding that the verdict of a jury in two of those cases tried together sometime ago before one of the other judges determined the question of responsibility for the collision. I am dismissing the plaintiff's claim. I am going to submit to you the question only as to the damages to the defendant's truck in the collision. The record has been made up and it is going to the Court of Appeals, and the lawyers are going to shoot at me from every angle because I am taking a new turn on them. I think I am right...