Booth v. Mary Carter Paint Co.

Decision Date21 January 1966
Docket NumberNo. 5704,5704
Citation182 So.2d 292
PartiesJ. D. BOOTH, Appellant, v. MARY CARTER PAINT COMPANY, a Delaware Corporation, Wallace Tompkins and Crofford D. Hancock, Appellees.
CourtFlorida District Court of Appeals

Howard C. Hadden, of Hawes & Hadden, St. Petersburg, for appellant.

E. R. Mills, Jr., Ocala, for appellees.

PIERCE, Judge.

Appellant J. D. Booth (hereinafter called plaintiff) filed suit in the lower Court seeking damages for the death of his wife as a result of a motor vehicle accident. Named as defendants were Mary Carter Paint Company, a corporation, Wallace Tompkins, Crofford D. Hancock, B. C. Willoughby and Harry Lee Sutton. Involved in the fatal accident were two trailer-tractor trucks belonging to Mary Carter and one Chevrolet truck owned by Willoughby. The Mary Carter vehicles were being operated by Hancock and Tompkins respectively, while the Willoughby vehicle was being operated by Sutton. The three drivers were so operating their respective vehicles as to render the truck owners responsible for the acts of their respective drivers. The accident happened at about 2:30 o'clock in the morning of May 8, 1964 on State Road 491, a two lane paved highway in Citrus County. Plaintiff's wife was driving alone in her Volkswagen, engaged in her duties as a newspaper route carrier, and crashed into the rear end of the Willoughby truck. All three trucks were parked on the pavement of the highway at the time, and took up practically the entire width of the paved road.

The Complaint filed by plaintiff was grounded upon the theory of concurrent negligence on the part of all three truck drivers and the resultant liability of the truck owners. Owner Willoughby and his driver Sutton answered, making general denial of liability and asserting affirmatively that the deceased was contributorily negligent in the operation of her Volkswagen, which negligence was a proximate cause of the accident. Mary Carter and its two drivers filed similar defenses.

Numerous depositions of various witnesses were then taken by the several parties to the suit, pursuant to which Mary Carter and its employees filed Motion for Summary Judgment in their favor, contending that no genuine issue of fact existed between plaintiff and said defendants on the question of liability. The Court granted said motion and summarily dismissed the suit against said three defendants, leaving Willoughby and his driver remaining as sole defendants. Plaintiff has appealed the order granting summary judgment.

So the issue presented for determination by this Court is: from the facts and circumstances shown to exist by the pleadings and depositions, 1 together with the reasonable inferences therefrom, was the lower Court warranted in holding as a matter of law that no liability existed, or could exist, as to the three defendants involved to warrant submission of the case, as to them, to a jury? We think the Circuit Judge was in error in so holding.

Resolution of this question necessarily depends initially upon determination of what facts were before the lower Court. Such facts may be collated as follows:

The tragedy had its inception in a college fraternity initiation prank. A part of the 'rites' consisted of the 'brothers' taking two 'neophytes' out on a lonely State road and putting them out on the highway blindfolded without them knowing where they were, on foot and with no company except the screech owls and the heavens above. This is what happened on that night at the time and place aforesaid. The 'brothers' had proceeded back to the sanctum of their University lodgings, leaving the two initiates wandering around at night, alone and helpless on the public highway. Into this eerie situation came two heavily loaded motor vehicle rigs, both owned by defendant Mary Carter and being then and there operated on Mary Carter business. The trucks were being driven in a southerly direction on said highway, the forward truck being driven by employee Hancock and the one to his rear being driven by employee Tompkins. Hancock was driving a 1963 GMC cab or tractor pulling a 36 foot Miller trailer which was eight feet wide and carrying a cargo load of 15 tons of pigment. Tompkins, to the rear of Hancock about a quarter of a mile, was driving a 1962 model GMC box sleeper cab, pulling a 36 foot Miller trailer, similarly loaded with pigment . Both trucks with their respective cargo were proceeding to the same destination in Hillsborough County.

When the lead truck, Hancock driving, approached the two boys on the highway, Hancock at first thought there had been an accident and stopped his vehicle. He described it as rolling country and said that he had just turned a curve on the highway and was then going slightly downhill when he stopped. The road at that point was 18 to 20 feet wide. His vehicle, which was 8 feet wide, stopped with all wheels on the paved portion of the highway. When he stopped he rolled his cab window up and locked the door. Tompkins, the other Mary Carter driver, in the meantime had come up behind and parked about 40 feet behind Hancock on the same side of the highway, also with all wheels on the pavement. Just ahead of Hancock was a hill, downward in the direction Hancock would have been going but upwards for anyone approaching Hancock. When he first came up on the boys, Hancock had his bright lights on, then dimmed them for the boys, then put them on bright again. He also turned his blinker lights on, which he explained by saying, 'You pull a switch and all four of them, two front ones and two rear ones, blink at the same time * * * an emergency precaution.' After he pulled up, Hancock quickly saw nothing to indicate there had been an accident and that neither of the boys appeared to be hurt, however, he continued to leave his headlights and his blinker lights on, as indicated.

After he had had conversation with one of the boys enough to ascertain what had happended, he noticed a truck coming up over the hill toward him. This was the Willoughby truck, driven by Sutton. Describing the incline, Hancock said 'It's a long hill. It was a pretty good ways. I'd be scared to say,' estimating it was probably a quarter of a mile in length. Just as he saw the headlights of the Willoughby truck coming over the top of the incline Hancock again dimmed his own lights and Sutton dimmed his likewise. Sutton thereupon pulled his vehicle alongside of Hancock's in such position that his cab window was immediately opposite Hancock's cab window and they could easily talk to each other. Willoughby's truck was 'very large,' fully loaded with lime rock, carrying a gross overall weight of at least 36 tons. All three vehicles were then parked on the paved portion of the highway, the two Mary Carter vehicles in single file headed in a southerly direction and the Willoughby truck headed north. Hancock and Sutton then had conversation, with Hancock acquainting Sutton with the situation.

At just about this time plaintiff's wife, driving alone in her Volkswagen car covering her newspaper route, came up in a northerly direction and crashed into the rear of the Willoughby truck, being killed instantly. At the time of the impact Hancock had not seen the Volkswagen, had not heard the approach of the Volkswagen, was not conscious of the approaching headlights on the Volkswagen, and was looking not at the road ahead but across in the direction of Sutton with whom he was talking. The first thing he saw was the 'shower of glass up under the rear end of' the Willoughby truck. He did not hear any brakes sound nor any crash of metal. The windshield of the Volkswagen was demolished and the glass crashed down on the pavement but Hancock did not hear it hit the pavement, only 'seen it.' It was a reasonably dark night. Hancock was especially familiar with that particular area, having driven over that highway 'twice a week for the last year or two anyway,' and having hunted deer in that area. The road had a 200-foot right-of-way fenced in on either side of the road. The shoulder of the road on Hancock's side was grassy and sandy and approximately 8 feet wide, the same as his vehicle. After the impact, Hancock said the Volkswagen 'shot back like a bullet' a distance of from 42 to 52 feet. Its headlights were still on when it came to rest. The Willoughby truck was unmoved and showed no signs of being struck. At the time of impact the Willoughby truck and the Hancock truck were preempting the paved portion of the highway or, as Hancock described it, 'the two travelling lanes of the highway were taken up .' Each of the Mary Carter trucks had flares and flashlights as a part of their equipment, but they were not used.

Tompkins, the driver of the second Mary Carter truck, had driven that particular road numerous times before and was familiar with it. While he was parked just behind Hancock's truck, his attention was momentarily distracted by a bad waterpump on his truck. He looked at his heat indicator, then stuck his head out of his window, which is when he first noticed the headlights on the Volkswagen approaching the Willoughby truck from about 200 to 250 yards away. He could not hear the Volkswagen but estimated it was travelling around 40 to 45 miles per hour. Although he noticed the Volkswagen approaching he did not use his lights nor sound his horn as a warning. The Volkswagen seemed to swerve slightly to the right about thirty or forty feet before the impact with the Willoughby truck.

The foregoing constitute the essential facts established by the pleadings and depositions before the trial Judge. 2 The question before this Court is a close one but our disposition is clearly indicated by the record before us.

Certain well-established principles have been heretofore laid down by the Florida Appellate Courts governing consideration of Motions for Summary Judgment. Summary judgment is not a substitute for a trial. Alepgo Corp. v. Pozin, Fla.App.1959, 114...

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