Downing v. Ulmer, Civ. A. No. AC-1800.

Decision Date05 May 1966
Docket NumberCiv. A. No. AC-1800.
Citation253 F. Supp. 694
CourtU.S. District Court — District of South Carolina
PartiesMary C. McLeod DOWNING, Administratrix of the Estate of Lonnie F. Downing, Deceased, Intestate, Plaintiff, v. Lena S. ULMER, Administratrix of the Estate of Katherine E. Peeples, Deceased, Intestate, Defendant.

Billy R. Craig, Floyd & Craig, Hartsville, S. C., for plaintiff.

Julian B. Salley, Jr., Henderson, Salley, Cushman & Summerall, Aiken, S. C., for defendant.

Robert L. Scott, Charlotte, N. C., for petitioners Queen City Coach Co. and Michigan Mut. Liability Ins. Co. SIMONS, District Judge.

This action was originally commenced by plaintiff, Mrs. Mary C. McLeod Downing, as Administratrix of the Estate of her husband, Lonnie F. Downing, deceased, against the defendant for the wrongful death of her intestate husband, pursuant to the provisions of Section 10-1951 of the 1962 South Carolina Code of Laws, based upon the actionable negligence of defendant's intestate in the operation of her automobile, which resulted in the head-on collision between her said automobile and the Queen City Coach Company bus driven by plaintiff's intestate. The case was tried before me without a jury on March 30, 1966 at Aiken, South Carolina.

During the course of the trial, upon motion of plaintiff and without objection from defendant, plaintiff by leave of court was permitted to amend her complaint so as to include therein a second cause of action for conscious pain and suffering under the Survivorship Statute, Section 10-209 of the 1962 South Carolina Code of Laws. Defendant's answer to the wrongful death action was amended so as to incorporate therein the same answer as to the survivorship action.

From the testimony of the witnesses presented by plaintiff and stipulations submitted to the court by the defendant,1 I make the following findings of fact and conclusions of law.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff, Mrs. Mary C. McLeod Downing, is the duly appointed Administratrix of the Estate of Lonnie F. Downing, deceased, and is a citizen of the State of North Carolina. Plaintiff's intestate left surviving him as beneficiaries under the wrongful death action, pursuant to Section 10-1952 of the 1962 South Carolina Code of Laws, his widow, the plaintiff herein, and their two sons, Bruce Wayne Downing, aged 19, and William Fred Downing, aged 26; further, that said widow and two sons also constitute his heirs-at-law and next of kin. Lonnie F. Downing, at the time of the fatal collision, was in good health, a devoted husband and father, a good provider who was earning annually between $6500 and $7500. At the time of his death he was 53 years of age with a life expectancy of 21.25 years, according to the South Carolina Mortuary Table, Section 26-12, as amended, of the 1962 South Carolina Code of Laws.

The defendant, Lena S. Ulmer, is the duly appointed Administratrix of the Estate of Katherine E. Peeples, and is a citizen and resident of the State of South Carolina. This court has jurisdiction of this cause by virtue of diversity of citizenship of the parties and the amount in controversy pursuant to Title 28, U.S. C.A. Section 1332(a).

On September 14, 1964 at about 5:00 p. m., plaintiff's intestate, while in the course of his employment and duties with Queen City Coach Company, was driving a bus in a westerly direction along South Carolina Highway No. 28 in Aiken County, near the town of New Ellenton, in a careful, cautious and lawful manner, and in the proper lane of traffic. At that time and place defendant's intestate, Katherine E. Peeples, was driving a 1956 Mercury automobile in an easterly direction on said Highway No. 28 at a highly dangerous and unlawful rate of speed in a negligent, reckless, and wilful manner. As defendant's intestate driving the Mercury automobile as aforesaid approached the bus driven by plaintiff's intestate, the Mercury automobile which she was driving at an estimated speed of 70 to 80 miles per hour traveled to its left across the center line of said highway directly into the path of the oncoming bus. Plaintiff's intestate, being faced with a sudden emergency, slowed the bus and swerved to his left to attempt to avoid head-on collision with the oncoming Mercury. At about that time the Mercury swerved back to the right and the bus was swerved back to its right and a head-on collision occurred between the two vehicles near the center line of said highway, resulting in mortal injuries to both defendant's intestate and plaintiff's intestate, the latter dying about four days later. Plaintiff's intestate received severe injuries about his entire body, he was almost scalped and caused to suffer much conscious pain, lingering on for several days, and dying as a result of his said injuries at about 7:00 a. m. on September 18, 1964. Plaintiff's intestate, in his operation of the bus under the circumstances existing immediately prior to the fatal collision, was operating the same in a careful and cautious manner and used such care and diligence as a person of ordinary reason and prudence would have exercised under the same or similar circumstances.

In the collision several passengers in the bus were seriously injured and the action of the insurance carrier for defendant's intestate in depositing the full amount of its personal injury coverage under its liability policy over the Peeples automobile is clear indication that it concluded after its investigation that the facts in this case placed the full liability and responsibility for the fatal accident upon its insured, defendant's intestate, Katherine E. Peeples. It is also significant to note that defendant offered no witnesses and defense counsel participated in very limited cross examination of plaintiff's witnesses.

Under the evidence before the court in this case I find and conclude that the actionable negligence, recklessness, wilfulness and wantonness of defendant's intestate in the operation of her Mercury automobile upon the occasion in question was the sole proximate cause of the head-on collision, and the personal injuries and resulting death to plaintiff's intestate, and to the injuries and damages which have been caused as a...

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2 cases
  • Brooks v. United States, Civ. A. No. 66-514.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 15, 1967
    ...C. Ry. Co. (1947), 210 S.C. 367, 372-373, 42 S.E.2d 705; Folk v. United States (D.C.S.C.1952), 102 F.Supp. 736, 741; Downing v. Ulmer (D.C.S.C.1966), 253 F.Supp. 694, 698. The testimony of conscious pain and suffering on the part of the decent is not undisputed. The decedent lived for only ......
  • McDonald v. EJ Lavino Company, 28402.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 20, 1970
    ...the state treasury, which right may be enforced in the action heretofore provided for or by an independent action. 3 Downing v. Ulmer, D.S.C.1966, 253 F. Supp. 694, 698 n. 2. 4 Rule 24 (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1......

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