Fruit Industries, Inc. v. Petty

Citation268 F.2d 391
Decision Date11 September 1959
Docket NumberNo. 17397.,17397.
PartiesFRUIT INDUSTRIES, INC., Appellant, v. Stella PETTY, as Administratrix of the Estate of Julius E. Petty, deceased, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Michael L. Kinney, Tampa, Fla., Robert H. Walker, Keokuk, Iowa, Fowler, White, Gillen, Yancey & Humkey, Tampa, Fla., of counsel, for appellant.

W. J. Arnold, Batesville, Ark., Thomas C. MacDonald, Jr., Norman Stallings, Vernon W. Evans, Jr., Tampa, Fla., Shackleford, Farrior, Stallings, Glos & Evans, Tampa, Fla., of counsel, for appellees.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

HUTCHESON, Chief Judge.

This appeal is from three judgments which were recovered by the plaintiffs in actions growing out of an automobile truck-trailer collision which occurred in Iowa. In one of the actions recovery was sought by the administrator of the estate of Julius E. Petty who was killed while driving the car involved in the accident. The second action was for the death of Joe Forrest Petty, age 13, minor son of Julius E. Petty who was a passenger in his father's car. The third action was brought by the owner of certain furs which were being transported by Petty and which were destroyed in the accident. The three actions were consolidated for trial and likewise have been consolidated for appeal. We shall designate the parties as they were in the lower court.

The complaints alleged in general terms the negligence of the defendant and further, among other Iowa statutes, specifically pleaded the violation of Section 321.3031 of the Iowa statute dealing with passing another vehicle proceeding in the same direction.

On the record made, therefore, plaintiff contended below and contends here that defendant was guilty of negligence, both under and apart from the statute, in endeavoring to overtake and pass the Standard Oil truck which was proceeding in the same direction, and that his act in so doing created a sudden emergency which caused Petty, the driver of the car, to apply his brakes and thereby caused his car to skid in front of, and into contact with said truck.

Stated in the most favorable light for the plaintiff, that the record permits the evidence is as follows:

On December 21, 1956, at or shortly after 9 A. M., Julius E. Petty, the husband of Stella Petty, was driving his automobile north on Highway 218, approximately nine miles north of Donnellson, Iowa, and his minor son, Joe Forrest Petty, was riding with him. At the same time and place a truck and trailer, owned and operated by the defendant, Fruit Industries, Inc., was proceeding south on the highway; this equipment of the defendant had been following a Standard Oil truck for at least a mile and had been gradually gaining on it. These vehicles passed the crest of a hill on which the residence of Louis Holtkamp was situated and were coming down the slope when defendant's truck-trailer commenced pulling into its left lane in an attempt to pass Standard's vehicle which was then traveling at 45 miles per hour. The speed of defendant's rig at that time was estimated by Harold Willis Mitchell, driver of Standard's truck, as between 50 and 55 miles per hour. Mitchell testified that defendant's vehicle, while endeavoring to pass him, was driven completely into the east or left lane on which lane Julius Petty was approaching from the south, having just come over the crest of a hill, with Standard's truck in the west lane, the entire highway was blocked and plaintiffs contended and the jury found that Petty was suddenly confronted with a dire emergency and in his action thereafter was not guilty of, or chargeable with, negligence.

When Petty was still 200 or 300 feet away from Standard's vehicle, his car went into a skid and Petty lost control. At that time defendant's vehicle was in the process of going back in its proper lane. Petty's car continued to skid and went to the right or east shoulder and then swung directly across the highway onto the west shoulder and collided with Standard's truck.

At the time and place of the accident it was foggy and visibility was quite limited. All of the vehicles involved in the accident had their lights on. At the close of plaintiffs' and again at the close of defendant's case, defendant moved for verdict in its favor and, the motions denied, the case was submitted to the jury on a charge to which no exceptions were taken, and there was a verdict in each case for plaintiffs.

After the jury returned verdicts for each of the plaintiffs, defendant filed motions to set the verdict aside and in the alternative moved for a new trial. Each of the motions were denied and this appeal resulted.

Here, assigning four errors2 and arguing that the evidence was insufficient to enable a jury to find that negligence of the defendant proximately caused plaintiffs' damages, appellant earnestly contends that when all the evidence is considered, as it is required to be, in the light most favorable to plaintiffs, the conclusion must be reached that a jury of reasonable men could not find that negligence on the part of defendant's driver was the proximate cause of the collision and the damages for which plaintiffs sued.

While the accident occurred in Iowa and the suit was tried in Florida, and in the beginning conflict of laws questions bulked large in the case, no objection was made or exception taken to any of the rulings or the charges of the district judge dealing therewith, and, except as Iowa statutes and decisions have a bearing on the only question the assignments raise, whether under the evidence there was negligence or contributory negligence as matter of law and whether the verdicts were excessive, the fact that the accident occurred in Iowa and was tried in Florida is of no importance in the case. It is true that appellant urges upon us that plaintiffs must rely on circumstantial evidence for a verdict and that in the circumstances of this case the burden Florida law places on plaintiffs was too heavy to be borne; and that appellees, citing Ling v. Edenfield, 5 Cir., 211 F.2d 705, Pogue v. Great Atlantic & Pacific Tea Co., 5 Cir., 242 F.2d 575, Dallas Ry. & Terminal Co. v. Sullivan, 5 Cir., 108 F.2d 581, and other cases from this circuit (but see Dick v. New York Life Insurance Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935), insist that the sufficiency of the verdict is governed by the rule established generally in the federal courts. In addition, arguing with confidence that, entirely apart from circumstantial evidence, the undisputed proof showing defendant's negligence and violation of the Iowa passing statute in attempting to pass established its liability, appellees cite in support Cunningham v. Court, 248 Iowa 654, 82 N.W.2d 292 and other Iowa cases.

Finally, assuming for the purpose of the argument that the so-called Florida rule applies, appellees, citing Florida cas...

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    ...F.2d 355, 364–365 (5th Cir.1980)citing Wiley v. Stensaker Schiffahrtsges , 557 F.2d 1168, 1172 (5th Cir.1977)and Fruit Indus., Inc. v. Petty , 268 F.2d 391, 395 (5th Cir.1959), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc. , 107 F.3d 331, 1997 A.M.C. 1521 (5th Cir.1997). Th......
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    ...of damage awards by comparing verdicts in similar cases, but rather we review each case on its own facts."5 As early as 1959, in Fruit Industries, Inc. v. Petty, we stated that "[c]omparison of verdicts rendered in different cases is not a satisfactory method for determining excessiveness v......
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