Cherry-Burrell Co. v. Thatcher, 9163.

• Decision Date: 02 January 1940
• Docket Number: No. 9163.,9163.
• Citation: 107 F.2d 65
• Parties: CHERRY-BURRELL CO. et al. v. Ray C. THATCHER.
• Court: U.S. Court of Appeals — Ninth Circuit

107 F.2d 65 (1939)

CHERRY-BURRELL CO. et al. v. Ray C. THATCHER.

No. 9163.

Circuit Court of Appeals, Ninth Circuit.

October 31, 1939.

Rehearing Denied January 2, 1940.

Speer & Hoffman, of Great Falls, Mont., Corette & Corette, of Butte, Mont., and Bronson, Bronson & McKinnon, of San Francisco, Cal., for appellants.

Walker & Walker and Harlow Pease, all of Butte, Mont., for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

HANEY, Circuit Judge.

This is an appeal from a judgment rendered for appellee in an action brought by him against appellants to recover for personal injuries alleged to have been sustained by him as the result of a collision of the automobile in which he was riding with an automobile operated by appellant Beardsley in the course of his employment with the corporate appellant.

Appellee and Beardsley were both traveling salesmen at the time of the accident in question. On June 25, 1935, a rear tire on appellee's automobile "blew out" and caused a forceful collision with another automobile. Appellee's vehicle was turned around on the road, he was rendered unconscious, and sustained a fractured hip. He was confined to a hospital for 7 weeks, and then at his home for 6 additional weeks. He testified that he had no pain after the middle of November, 1935. He resumed his employment on January 1, 1936, but had a driver to assist him until August, 1937.

Highway No. 10 runs southeasterly from Missoula to Deer Lodge in Montana, through the towns of Drummond and Garrison. From Missoula to Drummond it is 53 miles; from Drummond to Garrison it is 21 miles; and from Garrison to Deer Lodge it is 11 miles. The town of Hall is off Highway No. 10, and 6 miles south of Drummond. On February 6, 1936, at about 11 a. m. a severe blizzard began between Garrison and Deer Lodge. A disinterested witness testified that it was the worst storm there in seven years. It was extremely cold, the snow was blowing in flurries, and banks of snow lined the highway. In some places, the width of the road was sufficient for only one vehicle.

Appellee testified that he left Hall on February 6, 1936, in his panel delivery truck which was being driven by Anderson at about 1:30 p. m.; that upon arrival at Drummond, they then proceeded toward Deer Lodge, and passed through Garrison sometime between 3 and 3:30 p. m.; that just outside Garrison a highway patrolman stopped them, warned them of the storm, and cautioned them to drive slowly and with lights on; that about 4 or 5 miles from Garrison, and between 4 and 5 p. m., a car in attempting to pass them without warning, collided with appellee's car, throwing the rear end thereof sidewise, which caused appellee to be turned in his seat, so that he struck his right side immediately above the hip on the seat occupied by Anderson; that after momentarily stopping to "right" their car, they sped after the car alleged to have struck them; that in a distance of from 100 to 150 feet, the other car "practically" stopped to pass a truck which was stalled, and that they overtook the car so that he was able to note the license number thereof; and that they then proceeded to Deer Lodge, arriving there between 5 and 5:30 p. m., and registered at an hotel.

Beardsley who was driving the car bearing the license number noted by appellee on Highway No. 10 testified that he left Missoula between 1:30 and 2 p. m. and drove slowly all the way, had no accidents of any kind, arrived in Deer Lodge about 5:30 p. m. and went immediately to the Deer Lodge Creamery; that he registered at the hotel at about 5:30 p. m., returned to the creamery, and about 6 p. m. returned to the hotel and left his baggage, and spent the evening with the owner of the creamery.

That evening appellee called a State Highway patrolman to make complaint of the accident. The patrolman referred him to county officers. The following day, appellee reported the accident to the County Sheriff. The memorandum made by the latter at that time was as follows: "Accident 8 miles west of Deer Lodge both cars going East. Burrell Car side-swiped Thatcher car — John Anderson with Thatcher Accident 4 P. M. 6th day Feb." Appellee also signed a complaint in blank at the County Attorney's office. The charge subsequently placed in the complaint was a misdemeanor, although a "hit-and-run" offense in Montana is a felony. Rev.Codes of Mont.1935, § 1754.5. Beardsley was not arrested, but in the early part of March, 1936, was notified of the charge by another County Sheriff. Trial of Beardsley in April, 1936, resulted in an acquittal.

Appellee testified that the collision "knocked off" the tail light and dented the left rear fender and hub cap on his car. As to injury of the car operated by Beardsley, the sheriff, who notified Beardsley of the charge against him, examined such car, and testified that he found "one minor dent on one front fender". Later in March, 1936, Beardsley reported to the sheriff who held the warrant of arrest for Beardsley. The owner of the Deer Lodge Creamery testified that he examined such car at that time and "on the back of the right front fender was a small dent, I would say about three or four inches, and towards the back of the running board, the metal had been scratched a little. The dent was on the top and toward the back of the car — the back part of the fender. I personally investigated the front end of the fender and there were no signs of any dents or marks of any kind on the front end of the fender * * * I examined the rear end of the car, that is the right rear part of the car. There was no mark to show that there had been any sign of a collision."

Appellee testified that he examined the car at the time of Beardsley's trial and that then the front fender and running board on the right side were "bent in".

Appellee testified that he vomited what he was able to eat on the evening of February 6, 1936, and vomited for three or four days afterward. On February 7, 1936 he visited Dr. Brogan who placed tape on his back. About August 1, 1936, he visited Dr. Mondloch who testified that he diagnosed appellee's condition as "sacroiliac strain or sprain, if you will, and sciatica right side, both". Appellee visited Dr. Brown on October 9, 1936. Dr. Brown's notes made at the time state that an examination disclosed no evidence of injury to appellee's back.

On October 13, 1936, appellee filed his complaint to recover compensatory and exemplary damages.

On February 4, 1938, while lifting a grip or trunk tray, appellee had a sharp pain in his back. He was treated the following day by Dr. Emery, and thereafter eight times by Dr. Brown. Appellee testified that he has worn tape and braces since the time of the alleged accident on February 6, 1936.

As to appellee's actual damages, he testified that his average earnings in 1935 were $275 monthly; that following the alleged accident on February 6, 1936, a young salesman accompanied him, and as a result, his earnings decreased; that on April 19, 1937, he was placed on a salary of $178 monthly; and that in April, 1938, he was discharged and had been unable to find employment since that time.

Trial to the court began on November 29, 1938, a jury having been waived. It appeared that although appellee was carrying health and accident insurance and had claimed benefits for the injuries sustained in the accident of June 25, 1935, he had not claimed benefits for the alleged accident of February 6, 1936. On March 7, 1938, appellee submitted an application for benefits of a health and accident policy wherein he stated the injury causing the...