Brooks Transp. Co. v. McCutcheon

• Decision Date: 25 February 1946
• Docket Number: No. 9076.,9076.
• Citation: 154 F.2d 841,80 US App. DC 406
• Parties: BROOKS TRANSP. CO. v. McCUTCHEON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

80 US App. DC 406, 154 F.2d 841 (1946)

BROOKS TRANSP. CO. v. McCUTCHEON.

No. 9076.

United States Court of Appeals District of Columbia.

Argued January 17, 1946.

Decided February 25, 1946.

Mr. Paul J. Sedgwick, of Washington, D. C., for appellant.

Mr. James R. Kirkland, of Washington, D. C., for appellee.

Before GRONER, C. J., and EDGERTON and CLARK, JJ.

GRONER, C. J.

This is an action to recover property damage growing out of a motor vehicle collision. The incident occurred May 24, 1944, about 1 o'clock A.M., near the Maryland village of North East, on U. S. Route No. 40, the principal automobile road between Washington and Philadelphia. At that point the highway consists of four lanes, two northbound and two southbound, separated by a grass area approximately 50 feet wide. At about the place of collision there was a gradual northbound downgrade. Somewhere in the neighborhood of an hour before the collision a tractor-trailer unit of defendant (appellant) became disabled and was parked in the righthand northbound lane of the highway. A similar unit of plaintiff (appellee), also northbound, ran into the rear of the stalled truck. Plaintiff's vehicle was damaged and caught fire and the driver was burned to death. There was a verdict in the amount of $8,873.84 for plaintiff.

On this appeal defendant claims error on the following grounds: (1) that the suit should have been dismissed without trial because a suit begun by defendant, involving the same parties and the same cause of action, was then pending in the United States District Court in Baltimore; (2) that the court below refused to instruct the jury in accordance with defendant's instruction No. 3; (3) that the trial court denied defendant's motion for a directed verdict; (4) that there was no competent evidence of the amount of damage sustained on which the verdict of the jury could rest; and (5) that the court granted plaintiff's Instruction No. 1.

We shall dispose of these points in the order in which we have stated them.

One: The record shows that the action brought by plaintiff against defendant in the court below was begun prior in time to the proceeding brought by defendant against plaintiff in Baltimore, but the action brought in the latter city was first reached for trial. Plaintiff here appeared in that proceeding, filed a counterclaim under Rule 13-(a) of Civil Procedure, 28 U.S.C.A. following section 723c, and a trial was had resulting in a hung jury. Plaintiff thereupon calendared the case for trial in the District Court here. As we have seen, his action here was first begun, and defendant duly appeared in the court below, admitted jurisdiction and pleaded to the merits. In that state of affairs the universal rule is that the court here having assumed jurisdiction, all other courts should refrain from interference. It is well settled that as a matter of comity between Federal courts of equal jurisdiction one district court will not go forward where proceedings have been begun previously on the same cause in another district court. Ryan v. Seaboard & R. Co., C.C., 89 F. 397. In such a situation the court which first has possession of the subject should decide it. Crosley Corp. v. Hazeltine Corp., 3 Cir., 122 F.2d 925, 929, 930; Carbide & Carbon C. Corp. v. U.S.I. Chemicals, 4 Cir., 140 F.2d 47-49. And the court in which the complaint was first filed has first possession of the subject. F. X. Hooper Co. v. Samuel M. Langston Co., D.C., 56 F.Supp. 577, 585. The fact that plaintiff below was afterwards sued in the same cause of action in the court in Maryland, and in the protection of his interest felt it necessary to appear in that court, was not an abandonment by him of his suit then pending in the District of Columbia. When the trial in Maryland came to naught his right to insist upon trial in the District Court in Washington was unaffected by anything that had occurred there.

Two: Defendant's Instruction No. 3, which the court refused, would have told the jury that if they believed that the driver of plaintiff's truck was asleep when the collision occurred, their verdict should be for the defendant. The court's refusal was placed on the ground that there was no testimony directly or indirectly on which to base such an instruction, and a careful search of all the evidence shows that this is correct. Under these circumstances the court properly denied the instruction.

Three: Defendant's request for a directed verdict was properly refused because the evidence was contradictory as to whether the stalled truck was lighted as the Maryland laws require, or was, in the foggy and rainy condition of the weather, invisible to the driver of the oncoming truck until too late to avoid the collision. In that aspect, the question of whose negligence was the proximate cause of the...