Franklin v. Shelton

• Decision Date: 03 March 1958
• Docket Number: No. 5579.,5579.
• Citation: 250 F.2d 92
• Parties: Minnie FRANKLIN, Appellant, v. J. D. SHELTON and wife, Venera Shelton, suing herein in their own behalf; and Pamela Shelton, Larry Shelton, Anita Shelton, and Robert Shelton, minors, suing herein by and through J. D. Shelton, as their next friend, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

250 F.2d 92 (1957)

Minnie FRANKLIN, Appellant, v. J. D. SHELTON and wife, Venera Shelton, suing herein in their own behalf; and Pamela Shelton, Larry Shelton, Anita Shelton, and Robert Shelton, minors, suing herein by and through J. D. Shelton, as their next friend, Appellees.

No. 5579.

United States Court of Appeals Tenth Circuit.

November 7, 1957.

Rehearing Denied December 16, 1957.

Writ of Certiorari Denied March 3, 1958.

COPYRIGHT MATERIAL OMITTED

John B. Ogden and Josh Lee, Oklahoma City, Okl. (R. A. Howard, Ardmore, Okl., on the brief), for appellant.

R. M. Mountcastle, Muskogee, Okl., and Howard S. Smith, Sulphur Springs, Tex., for appellees.

Before BRATTON, Chief Judge, and HUXMAN and BREITENSTEIN, Circuit Judges.

Writ of Certiorari Denied March 3, 1958. See 78 S.Ct. 544.

HUXMAN, Circuit Judge.

This is an appeal from a judgment based on a verdict awarding substantial damages to the plaintiffs, J. D. and Venera Shelton, and to their minor children, Pamela, Larry, Anita and Robert Shelton, through their next friend, J. D. Shelton, for injuries suffered by them as the result of an automobile accident on Highway 77 south of Ardmore, Oklahoma.

At the time of the accident, the Shelton car was going north and the Franklin car was going south. In order to reach a business establishment located east of the highway, the Franklin car turned left at a place other than a road intersection, crossing the east side of the highway in the path of the Shelton car. The Shelton car crashed into the side of the Franklin car resulting in personal injuries to all parties and inflicting damages to both vehicles. Suit was brought by the plaintiffs for personal and property damages alleging the negligence of defendant as the sole proximate cause of the accident. The defendant answered denying the allegations of negligence and filed a cross-complaint seeking personal and property damages resulting from the alleged negligence of plaintiffs, J. D. and Venera Shelton.

Trial was had to a jury which found that the negligence of defendant was the sole proximate cause of the accident and assessed damages thus: J. D. Shelton, $53,181; Venera Shelton, $6,125; Larry Shelton, $20,375; Robert Shelton, $2,750; Pamela Shelton, $400; and Anita Shelton, $400. Judgment was entered upon the verdict and defendant appealed.

Error is predicated upon the action of the Court in denying a motion to strike parties plaintiff because of misjoinder; that the questions of law and fact were not common to all of the plaintiffs; and that it was prejudicial to the rights of the defendant to permit all of the parties to proceed in the same action. The essence of the motion was that the defense of contributory negligence applied as to the driver, J. D. Shelton, and his wife, Venera Shelton, but did not apply as to the minor children. Rule 20 (a), Federal Rules of Civil Procedure, 28 U.S.C.A., in parts provides, "All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action." Clearly the question of negligence on the part of the defendant in the operation of her automobile as the proximate cause of the accident and the resulting injuries to all of the plaintiffs was a question of fact, common to all of the plaintiffs. Therefore, they were authorized by the rule to join in a single action for the recovery of damages. Trial courts have a wide discretion as to joinder of parties and to consolidation of cases for trial.¹ The trial Court did not abuse its discretion in conducting a single trial for the adjudication of the rights of all of the parties.

In a motion for a more definite statement, the defendant sought to require the plaintiffs to further itemize their medical expenses. Rule 12(e), Federal Rules of Civil Procedure, provides, "If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement * * *." Without elaborating, it can be stated that plaintiffs' complaint alleged negligence and the damages sustained by the alleged negligence sufficiently to allow defendant to file a responsive answer. Under such circumstances, any further particulars which defendant might have needed in order to prepare for trial should have been obtained by the discovery procedures. It was not an abuse of discretion to deny defendant's motion.

Complaint is made that the Court erroneously struck from defendant's answer the allegations contained therein with reference to the joint ownership of the automobile in which plaintiffs were riding. The pleadings indicated that plaintiffs were residents of Texas and the contention is that under the community property laws of Texas it is presumed that J. D. and Venera Shelton were joint owners of the automobile in which they were riding at the time of the accident, that the money used by them on the trip was community money jointly acquired and that the trip was a joint mission of pleasure for themselves and their family. The intended purpose of the allegation was to invoke the law of Texas as the basis for imputing to plaintiff, Venera Shelton, negligence on the part of her husband in the operation of plaintiffs' automobile. But since the accident and the resulting injuries occurred in Oklahoma, the question of imputed negligence was to be determined by the law of that state.² Under the law of Oklahoma, the fact that plaintiffs, J. D. Shelton and Venera Shelton, were husband and wife and the fact that they were on a mission for the mutual benefit of both is not sufficient by itself to impute to her negligence on the part of her husband in the operation of the motor vehicle in which she was riding and he was driving.³

So also must fall appellant's argument that Venera Shelton was negligent, as the co-owner of the automobile, in failing to exercise her duty to prevent her husband from operating the auto in a dangerous, reckless manner in violation of the law.⁴ There was no showing that J. D. Shelton engaged in illegal or reckless acts which would call forth the duty on the part of Venera Shelton to control her husband's driving. In any event the matter was put to rest by the jury's finding that the sole proximate cause of the accident was defendant's negligence.

It is further contended that the Court erred in striking from defendant's answer the allegations therein with respect to the common custom and usage of the highway at the point where the accident occurred, and rejecting evidence relating to that matter. In her answer defendant pleaded at length that there was a business and residential section along the highway in the vicinity of the point at which the accident occurred; that it had become the common practice, usage and custom to use the area as a business section and that automobiles were continuously driven across the highway in the area. It is the law in Oklahoma that the statutes of the State relating to the use of public highways are controlling over customs and usages which are repugnant to the statutory regulations.⁵

The instructions of the trial Court adequately advised the jury as to the applicable Oklahoma statutes, irregardless of what custom and usage existed. The statutes of Oklahoma as regards the operation of a motor vehicle as given by the Court in its instructions would be determinative of the standard of duty imposed upon the defendant. The instructions also covered the duty of plaintiff to operate his vehicle in accordance with the existing conditions of the highway at the point of the accident and the immediate surroundings. The Court did not err in this respect.

Appellants contend that the trial Court erred in admitting certain testimony of Venera Shelton as related to physical injuries and suffering of herself and others of the Shelton family. It is argued that Mrs. Shelton was allowed to give medical testimony which should have come from a medical expert. In part she testified that her husband was a barber; that some time prior to the accident he had a tooth extracted from which some difficulty stemmed requiring a doctor's attention, and that he had been able to resume work after the difficulty cleared up. She also testified that her husband had done little work since the accident. She further testified as to the scars, bumps and obvious physical impairments suffered by her children from the accident; that her two daughters and youngest son had been nervous and that her oldest son had been slow in school and unobservant since that time; that Anita Shelton had had two upper front teeth knocked out and her nose crushed in the accident and that as a result of her crushed nose she now had difficulty breathing; that when first placed in a car after the accident she screamed and did not want the family to drive, and that at night she had nightmares and screamed; that Robert Shelton, among other injuries, had two ribs broken and a punctured lung, that tubes were placed to make the lungs expand, and that he had a scar on his back where the tubes were placed. Concerning herself, Mrs. Shelton testified that at the time of the accident she was knocked unconscious; that she had suffered certain obvious physical injuries which were still painful and bothersome; that the sight in her left eye was destroyed; that before the accident her eyes focused properly, and that since the accident her left eye had started crossing and losing its power to focus; that prior to the accident her menstrual periods were normal and that since the accident her menstrual periods had been irregular and abnormal and that presently she was going through the menopause.

It is uniformly held that where injuries complained of are of such character as to...