Chiles v. Rohl

• Decision Date: 05 December 1924
• Docket Number: 5032
• Citation: 201 N.W. 154,47 S.D. 580
• Parties: LAURA F. CHILES, Administratrix of Floyd V. Chiles, deceased, Plaintiff and respondent, v. ELI ROHL, Defendant, and Lewis L. Leavitt, Defendant and appellant.
• Court: South Dakota Supreme Court

47 S.D. 580

201 N.W. 154

LAURA F. CHILES, Administratrix of Floyd V. Chiles, deceased, Plaintiff and respondent,

v.

ELI ROHL, Defendant, and Lewis L. Leavitt, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. John T. Medin, Judge #5032--Affirmed Bailey & Voorhees, Sioux Falls, SD Attorneys for Appellant. Boyce, Warren & Fairbank, Sioux Falls, SD Attorneys for Respondent. Opinion filed December 5, 1924

POLLEY, J.

Plaintiff in this action is the widow of Floyd Chiles, deceased, and the administratrix of his estate. The action is brought to recover damages for the death of said decedent which is claimed to have been caused by the negligence of defendants. Plaintiff had judgment against the defendants Eli Rohl and Lewis Leavitt, and from such judgment and an order denying him a new trial defendant Leavitt appeals.

Appellant was operating a taxicab on the streets of Sioux Falls, and the defendants Rohl, and Althaus were operating a Ford truck on said streets. At about 11 o'clock on the morning of January 26, 1918, the said taxicab was traveling east on Ninth street in said city, and was approaching the intersection of said street with Prairie avenue. It was moving in excess of the speed limit, fixed by the city ordinances at 15 miles per hour. Various eyewitnesses testified that it was going 25 to 4o miles per hour. At the same time the said truck was approaching said intersection from the north on Prairie avenue, and was also exceeding the speed limit; eyewitnesses estimated its speed at from 15 to 25 miles per hour. These two streets intersect at right angles. The taxicab was on the right-hand side of the street and had the right of way at the intersection. The truck was in the center or between the center and left-hand side of Prairie avenue. Neither vehicle slowed down as it approached the intersection. On the contrary, it is claimed, and the evidence indicates, that the driver of each vehicle tried to pass the intersection ahead of the other. The result was that the truck struck the taxicab, throwing it out of its course and against and over the curbing at the southeast corner of the intersection of the two streets. Just within the parking at this intersection was a mail box. At the instant of the collision the said Chiles, who was a mail carrier, was in the act of taking mail from this box. As the taxicab went over the curbing, it struck Chiles, causing his death shortly thereafter.

It is the position of respondent that the accident was the result of concurring acts of negligence of the drivers of the two vehicles; while it is the contention of appellant that the negligence of the driver of the truck was the proximate cause of the accident and that appellant is not liable. It is also claimed by appellant that plaintiff is not the real party in interest and should not be permitted to maintain this action; and this question must be disposed of before taking up the merits of the controversy.

This latter contention is based upon the federal Compensation Law, sections 8932a to 8932uu, U. S. Compiled Statutes 1918. Under the provisions of this act the government pays certain sums as compensation for disability or death of an employee resulting from personal injury sustained while in the performance of his duty; provided, however, that if the injury or death for which compensation is payable is the result of circumstances creating a legal liability upon some one other than the United States to pay damages, the commission (U. S. Employee's Compensation Commission) may require the beneficiary to assign to the United States any right of action he may have to enforce such liability, or to require such beneficiary to prosecute such action in his own name. The amount, if any, recovered shall be used to reimburse the government, and the surplus, if any, shall be retained by the beneficiary. Section 8932mm, U. S. Comp. St. 1918.

In this case certain sums had been advanced to plaintiff by the government under the provisions of the above statute. Appellant contends that this action is brought for the benefit of the government, and should be brought in the name of the government and not in the name of this plaintiff. There is no merit in this contention. In the first place, this case is governed by section 2931, Code 1919, which requires the action to be brought in the name of the personal representative of the deceased person--in this case the administratrix of the decedent's estate. In the second place, the cause of action was not assigned, nor did the Compensation Commission require an assignment, to the United States as provided in section 8932mm, U. S. Comp. St. 1918. The government never became the owner of the cause of action. The provisions of section. 8932n contemplate the prosecution of the action by the beneficiary, and a recovery by the beneficiary bars an action by the United States. The disposition of the amount recovered as between the plaintiff and the United States is not a matter of concern to the defendant.

Upon the question of negligence and proximate cause, it is admitted that the driver of the taxi was negligent in exceeding the speed limit and in not slowing down as he approached the intersection, but that it was the intervening negligence of the truck driver that caused the injury. This, of course, is true, but it is just as true that the negligence of the truck driver would not have caused the injury without the intervening negligence of the cab driver. Either of these vehicles, in the absence of the other, could have passed this corner at the rate of 100 miles per hour without injury to the decedent. Had either of these drivers...