Carroll v. Harrison

• Decision Date: 24 March 1943
• Docket Number: Civil Action No. 67.
• Citation: 49 F. Supp. 283
• Parties: CARROLL v. HARRISON et al.
• Court: U.S. District Court — Western District of Virginia

49 F. Supp. 283

CARROLL v. HARRISON et al.

Civil Action No. 67.

District Court, W. D. Virginia, at Danville.

January 15, 1943.

On Motions March 24, 1943.

COPYRIGHT MATERIAL OMITTED

Aiken & Sanford, of Danville, Va., for plaintiff.

F. Eugene Hester, of Reidsville, N. C., for defendant Lula Harrison.

E. Walton Brown, of Danville, Va., for all defendants.

W. H. Rogers and Mary H. Williams, both of Danville, Va., guardians ad litem for the infant defendants, Henry Harrison and Robert Going.

On defendant's motions:

Aiken & Sanford, of Danville, Va., for plaintiff.

Brown, Garrett & Bass and W. H. Rogers, all of Danville, Va., for infant defendant Henry Harrison.

On Defendant's Motions March 24, 1943.

BARKSDALE, District Judge.

This action having been tried upon the facts by the Court without a jury, the Court doth hereby find the facts specially and state separately its conclusions of law thereon, and directs the entry of the appropriate judgment, as follows, in conformity with Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c:

Findings of Fact.

This is an action for damages resulting from a fatal accident which occurred in Pittsylvania County, Virginia, during the afternoon of Sunday, September 27, 1942. At that time, the defendant, Henry Harrison, nineteen years of age, lived with his widowed mother, the defendant, Mrs. Lula Harrison, on a farm near Reidsville, N. C., these two being the only members of the family at home. Together, they operated the farm, and used a 1941 Ford pick-up truck which had been acquired by trading in an old truck belonging to the deceased husband and father, the title to the new truck being taken in the name of Mrs. Harrison because Henry Harrison was an infant. Mrs. Harrison occasionally drove the truck when Henry was absent, but Henry always drove it when he was present and customarily took the truck on Sundays to do what he pleased with it.

On the day in question, September 27, 1942, he left home in the truck about 12 o'clock, noon, and told his mother he was going to town. He went to Reidsville and proceeded to the home of his friend, the defendant, Robert Going, a boy seventeen years of age. Going got in the automobile with Harrison, and they then picked up two other friends, Jesse Jones and Paul Harden, boys of about their own age. All four of them decided to get some whiskey and go to Danville in search of amusement. All four jointly "chipped in", bought a pint of whiskey, and after all of them had drunk some of it, they proceeded to Danville, Henry Harrison driving the car. On the way, they discussed going to a moving-picture show, but had not decided definitely whether they would go to a moving picture or not, and if so which one, when they reached the south side of Danville. Before reaching the business section of Danville, they stopped at Buck's Diner, where they all proceeded to drink more whiskey while they were having something to eat. They all became drunk and disorderly. At first, they all refused to pay their bills, and then one of the boys paid all the bills. A City policeman then came in one door of the diner, and the four boys left by another door, scrambled into the automobile, and left very hurriedly, although the policeman whistled and tried to stop them. They went some distance in one direction, but as some of them wished to go in the opposite direction, they turned around and came back by Buck's Diner. The same policeman again tried to stop them by use of his whistle and signals, because he had observed that Henry Harrison, who was driving, was too drunk to drive. However, the policeman's efforts to stop them were unavailing, so he commandeered the automobile of a bystander and chased the boys past the city limits. During this chase, the boys gained a distance of two city blocks, although the policeman drove as rapidly as fifty miles per hour. After riding around some more, the boys decided they wanted more to drink, and drove to a filling station and drink stand operated by one Spencer near the North Carolina line. According to the defendant, Henry Harrison, when they reached Spencer's place, it had not yet been definitely determined whether or not they would go to the moving pictures, but that they would go if the majority so desired. When the automobile was stopped at Spencer's place, Harrison and Harden got out, Going and Jones remaining in the car. The switch key, which was bent and difficult, or impossible, to remove, was left in the car. At that point, Going decided that he would drive into town and see what shows were going on at the moving picture houses and return while Harrison and Harden were drinking in Spencer's place, so that they might all determine whether they wanted to go to a moving picture show, and if so, which one. As Harrison was walking away from the car, and while he was yet in easy hearing distance of it, Going said to him, "I'm going down the road", to which Harrison made no reply, and Going turned the car around and proceeded toward Danville. (Harrison testified that he heard Going say that he was going down the road and would be back in a few minutes, to which he replied, "Wait a minute, and I'll be ready too." However, I choose to believe Going's statement that Harrison made no reply and raised no objection.) Harrison made no effort to stop Going. At that time, Going was too much under the influence of liquor to operate an automobile with reasonable safety, and Harrison knew this, or should have known it unless he himself was also too drunk to observe. Going had a driver's license, as Harrison knew, and on a number of occasions before, had driven this car when he and Harrison were together, and on at least one occasion recently, had driven the car alone with Harrison's consent and approval.

Leaving Spencer's place, Going, accompanied by Jones, proceeded into Danville, or to some point between Danville and the Pumpkin Creek Bridge on the Yanceyville Road (U. S. Highway No. 86), and on his way back, collided with the Plymouth automobile operated by plaintiff's decedent. (In his testimony, Going insisted that the collision took place as he was driving toward Danville, but the evidence is overwhelming that he was traveling south, away from Danville, when the accident occurred, and I consider his confusion about the direction in which he was traveling at the time, as a further indication of his drunkenness at that time.)

Going operating the Harrison car, accompanied by Jones, proceeded down a hill south along Highway No. 86 toward a bridge over Pumpkin Creek. The Plymouth automobile operated by plaintiff's decedent approached from the opposite direction. Highway No. 86 at this point is a three-lane improved highway, and plaintiff's decedent operated his car at a moderate rate of speed, in the right-hand lane of traffic in the direction in which he was going, and was guilty of no negligence whatsoever. Immediately prior to the collision, Going passed another automobile, occupied by three negroes, which was going in the same direction he was going, at an excessively high rate of speed, lost control of his car, drove it across the road, into the left-hand lane of traffic in the direction in which he was going, and collided head-on with the Plymouth car operated by plaintiff's decedent, almost instantly killing plaintiff's decedent and his own companion, Jesse Jones, rendering himself unconscious and completely demolishing both cars. This collision resulted solely from the negligence of Going.

Plaintiff's decedent, Robert Harding Tazewell Carroll, was twenty-nine years of age, had been married to plaintiff, who is twenty-one years of age, some three or four years, and they had one child, a daughter then two years old. He was in good health, a good husband and father, gainfully employed at the Riverside & Dan Cotton Mill, and was earning at that time about thirty dollars a week. His total earnings for the year 1941 were $959.05, and for 1942 up until the time of his death on September 17, 1942, were $855.57. According to standard mortality tables, he had a life expectancy of 36.03 years.

Conclusions of Law.

My conclusions of law upon the above findings of fact are as follows:

(1) That the accident which resulted in the death of plaintiff's decedent, was the direct result of the negligence of the defendant, Robert Going, and that plaintiff's decedent was free from contributory negligence. I therefore conclude that the said Robert Going is liable for damages to plaintiff for the injuries sustained by her.

(2) That during the Sunday afternoon excursion here under consideration, the defendant, Henry Harrison, left his home in full and complete charge and control of the automobile here in question, with the permission and approval of his mother, the registered owner, and, therefore, that at and before the time of the accident, the said Henry Harrison stood in the place and stead of the owner of the automobile for the time being. Therefore, under Virginia law, which is here controling, there was a prima facie presumption that at the time of the accident, the automobile in question was being operated by Going for the defendant, Henry Harrison, under circumstances making him, the said Henry Harrison, liable for the consequences thereof. The burden of refuting this presumption was on the defendant, Henry Harrison, which burden he has not borne. I, therefore, conclude that the said defendant, Henry Harrison, is jointly and severally liable with the said defendant, Robert Going. Kavanaugh v. Wheeling, 175 Va. 105, 113, 7 S.E.2d 125.

(3) That no relationship of master and servant existed between the defendant, Lula Harrison, and the defendants, Henry Harrison and Robert Going, or either of them, and that therefore there can be no recovery in this action against the said defendant, Lula Harrison.

(4) That under Virginia law, where two or more persons embark upon an excursion by...