Crowder v. Gordons Transports, Inc.

Decision Date26 August 1968
Docket NumberCiv. A. No. 2005.
Citation289 F. Supp. 166
PartiesRuth CROWDER, Mother and Next Friend of Walter Paul and David Douglas Crowder, minors, Plaintiff, v. GORDONS TRANSPORTS, INC., Defendant.
CourtU.S. District Court — Western District of Arkansas

Robert T. Dawson of Hardin, Barton, Hardin & Jesson, Fort Smith, Ark., for plaintiffs.

Shaw, Jones & Shaw, Fort Smith, Ark., and Wright, Lindsey & Jennings, Little Rock, Ark., for defendants.

OPINION

WILLIAMS, District Judge.

This case grows out of an automobile collision in Missouri. On February 21, 1967, the complaint and the amended complaint were dismissed by this court as being untimely filed. The Eighth Circuit of Appeals on December 29, 1967, 387 F.2d 413, reversed and remanded the case to the trial court for further proceedings consistent with the views expressed in its written opinion. The mandate of the Eighth Circuit Court is dated January 24, 1968.

The defendant on the 29th day of June, 1968 filed a motion for Summary Judgment with supporting memoranda, including an opinion by Honorable Bailey Brown, United States District Judge for the Western District of Tennessee. The plaintiff has filed a brief with supporting memoranda in opposition to the motion for Summary Judgment.

The facts are briefly as follows: Walton W. Crowder, the husband of Ruth Crowder and the father of the minors Walter Paul Crowder and David Douglas Crowder, was driving a truck belonging to the St. Louis-San Francisco Railway Company, which collided with a truck owned by Gordons Transports, Inc., and suffered injuries from which he died on the 27th day of July, 1965. Mrs. Ruth Crowder, individually, and Mrs. Ruth Crowder, as administratrix of the estate of Walton W. Crowder, executed a covenant not to sue to the St. Louis-San Francisco Railway Company and received $30,000.00 in consideration therefor. Thereafter, the plaintiffs in this action commenced suit against Gordons Transports, Inc., asking for additional damage.

The law of this case as established by the opinion of Martin D. Van Oosterhout, Chief Judge, in his opinion of December 29, 1967, is to the effect that the law of Missouri governs. The applicable statutes of the State of Missouri are Vernon's Missouri Code Annotated, Sec. 537.080, establishing the maximum damages in a wrongful death action at $25,000.00, and Vernon's Missouri Code Annotated, Sec. 537.060, which is as follows:

"Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. It shall be lawful for all persons having a claim or cause of action against two or more joint tort-feasors or wrongdoers to compound, settle with, and discharge any and every one or more of said joint tort-feasors or wrongdoers for such sum as such person or persons may see fit, and to release him or them from all further liability to such person or persons for such tort or wrong, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from the other joint tort-feasors or wrongdoers against whom such person or persons has such claim or cause of action, and not so released." (R.S. 1939, § 3658)

All of the contentions of the parties to this action were presented in Civil Action C-66-182 of the Western Division of the Western District of the United States District Court of Tennessee in the case of Willett, et al. v. Gordons Transports, Inc., and St. Louis-San Francisco Railway Company, which involves the identical accident out of which this case arose. The contentions in that case and the contentions of the parties in this case are for all practical purposes exactly the same. The decision of Honorable Bailey Brown, Chief Judge, is unpublished but available for use in this case. The entire memorandum decision is as follows:

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION MRS. MARIE WILLETT, Individually | and as Administratrix of the estate of | DAVID WILLETT, deceased | | v | | GORDON'S TRANSPORTS, INC. > Civil No. C-66-182 | v | ST. LOUIS - SAN FRANCISCO RAILWAY | COMPANY |

MEMORANDUM DECISION

In this action, plaintiff sued Gordon's Transports, Inc. for damages for the death of her husband as a result of an accident in Missouri. She alleged in general that while her husband, an employee of the S. L. & S. F. Ry. Co. ("Frisco"), was a passenger in a railroad-owned truck being driven by another Frisco employee, a driver of a Gordon's truck negligently ran into it, killing her husband. Gordon's then filed an answer and also filed a third-party action against Frisco for indemnity or contribution. Frisco filed a motion to dismiss this third-party action on the ground that indemnity or contribution could not be had by Gordon's under Missouri law because a joint judgment is necessary and that such a judgment could not be obtained here since Frisco had settled with and had obtained a covenant not to sue from plaintiff. This motion to dismiss was supported by affidavit with exhibits showing that $25,000 was paid by Frisco to plaintiff in settlement of its liability. Plaintiff has likewise urged us in her memorandum to dismiss this third-party complaint, possibly because Gordon's success under this third-party complaint might create a claim against plaintiff by Frisco under the covenant. Gordon's has on argument conceded that this motion to dismiss is good, as indeed it is, and the third-party complaint will be dismissed. Gordon's has further filed a motion for summary judgment as to plaintiff's action against it, contending that the payment of $25,000 to plaintiff by Frisco fully discharged its potential liability to plaintiff under Missouri law. The purpose of this memorandum decision is to dispose of this motion for summary judgment.

In support of this motion, Gordon's relies on the affidavit and exhibits thereto filed by Frisco. Gordon's also relies on two Missouri statutes. The first (Vernon's Missouri Code Annotated, Sec. 537.080) establishes the maximum...

To continue reading

Request your trial
1 cases
  • Crowder v. Gordons Transports, Inc.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 23, 1969
    ...Gordons moved for summary judgment under Rule 56, Fed.R.Civ.P. The district court sustained this motion. Crowder v. Gordons Transports, Inc., 289 F.Supp. 166 (W.D.Ark.1968). In its opinion the court incorporated the unpublished opinion of the United States District Court for the Western Dis......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT