Gallahar v. George A. Rheman Co.

• Decision Date: 02 July 1943
• Docket Number: No. 218-220.,218-220.
• Citation: 50 F. Supp. 655
• Parties: GALLAHAR et al. v. GEORGE A. RHEMAN CO., Inc., et al.
• Court: U.S. District Court — Southern District of Georgia

50 F. Supp. 655

GALLAHAR et al. v. GEORGE A. RHEMAN CO., Inc., et al.

Nos. 218-220.

District Court, S. D. Georgia, Augusta Division.

July 2, 1943.

COPYRIGHT MATERIAL OMITTED

Randall Evans, Jr., and Jack D. Evans, both of Thomson, Ga., for plaintiffs.

Bussey, Fulcher & Hardin, of Augusta, Ga., for George A. Rheman Co. and its insurance carrier.

John M. Slaton, of Atlanta, Ga., for Reliable Transfer Co. and its insurance carriers.

LOVETT, District Judge.

These are negligence cases. There are three of them, companion cases, and the questions now for decision in each case may be considered together.

The causes of action asserted arise out of a collision at night between an ambulance and a gasoline truck at the intersection of two paved highways within the limits of the incorporated town of Thomson, Georgia. The plaintiffs, citizens of Georgia, are the widow of an occupant of the ambulance who was killed in the wreck, the owner of the ambulance which was damaged, and the driver who was injured. The defendants are the owner of the gasoline truck, a common carrier, its driver and insurance carrier, and the owner, driver and insurance carriers (two it is said) of another truck which is alleged to have been so negligently parked in the street near the intersection as to obscure the vision of both drivers of the colliding vehicles. Only two of the defendants are citizens of Georgia, viz., the owner and driver of the parked truck, a Georgia corporation and a Georgia citizen.

The nonresident defendants removed the cases from the state court where filed on the grounds of separable controversies as to them and that no cause of action was alleged against the resident defendants.

The issues now before the court are preliminary to trials on the merits. There are motions to remand,¹ to dismiss,² to strike portions of the pleadings,³ objections to amendments,⁴ for judgments on the pleadings⁵ and for summary judgments,⁶ and there has been a pre-trial conference.⁷ These several matters will be considered in their order.

I. Motions to Remand.

The plaintiffs say the injuries complained of arose out of the joint and concurring negligence of the resident and nonresident defendants, the owner and driver of the parked truck as well as the owner and driver of the colliding gasoline truck, and because the former are for jurisdictional purposes Georgia citizens the cases are not removable and should be remanded. See Pullman Co. v. Jenkins, 305 U.S. 534 (3), at pages 538, 539, 59 S.Ct. 347, at page 349, 83 L.Ed. 334, and cases cited.

I am unable to agree.

The owner of the gasoline truck is charged with negligence in that its driver was speeding — violating a criminal law of the state —⁸ in failing to observe the ambulance approaching at right angles at the intersection at a reasonable rate of speed — and by driving directly into the ambulance when at the intersection. The only act of negligence charged against the local defendants was that the truck, of large size, standing still, was parked by its driver near the intersection in such a manner as to obstruct the view of the other two vehicles. As I construe the averments, the charge against the nonresident defendant gasoline truck owner is based on different and nonconcurrent acts of negligence,⁹ and a cause of action joint in character is not alleged. That being so, a separable controversy is presented. 4 Hughes, Federal Practice, § 2376; Gulf & S. I. R. Co. v. Gulf Refining Co., D.C., 260 F. 262, 264; Culp v. Baldwin, 8 Cir., 87 F.2d 679(2), 680; Pullman Co. case, supra, 305 U.S. at page 538, 59 S.Ct. at page 349, 83 L.Ed. 334. It must be remembered there is no allegation that except for the parked truck the collision would not have occurred, and it is quite consistent with the allegations made that the excessive speed of the gasoline truck would have produced the injuries anyway.

Apart from separability, however, the case is still removable, for, in my view, no sufficient claim for relief is set out against the two local defendants. If that is so, diversity of citizenship exists between all of the defendants and the plaintiffs, and the case was properly removed. See Knight v. Atlantic Coast Line R. Co., 5 Cir., 73 F.2d 76, 99 A.L.R. 405.¹⁰ The Georgia law controls as to the liability of the owner of the parked truck.¹¹ It does not appear that the truck was unlawfully parked. If it had been parked within eight feet of the center of the street, which is not alleged, the state law prohibiting such parking could not be invoked as it is inapplicable to the streets of an incorporated city.¹² As the pleadings were cast at the time of removal, no city ordinance was claimed to have been violated by the parked truck.¹³ The law of Georgia seems to be, under these circumstances, the owner of the parked truck is absolved of liability on the theory that his negligence is not the proximate cause of the collision; that the independent, illegal act of the third person intervening and producing the injury, and without which it would not have happened, shall be regarded as the proximate or producing cause, excusing the other defendant, though he may have been negligent as to other parties having a different relationship to him. See Grier et al. v. Williams, 68 Ga. App. 863, 24 S.E.2d 509, 512. Pullen v. Georgia Stages, Inc., 62 Ga.App. 592, 9 S.E.2d 104; Cain v. Georgia Power Co., 53 Ga.App. 483, 186 S.E. 229. The cases of Sprayberry v. Snow, 190 Ga. 723, 10 S. E.2d 179; Gazaway v. Nicholson, 61 Ga. App. 3, 5 S.E.2d 351; Callahan v. Cofield, 61 Ga.App. 780, 7 S.E.2d 592, and the Bozeman case, cited in note 13, are distinguishable on their facts. In the Sprayberry case a pedestrian was injured and the blinding lamps of the parked truck caused another automobile to strike him. It was affirmatively alleged that if the driver of the parked truck (who was sitting at the wheel) had dimmed his lights in response to a signal therefor from the approaching automobile the catastrophe could have been avoided. In the Bozeman case the parked truck (not being in a municipality) was violating a state law by the manner of parking and by being left without lights. Two other automobiles on the same highway collided through the effort of one of them to avoid striking the truck, and plaintiff riding in one of them was injured in the collision. The case recognizes the true rule of liability in Georgia. It was said:

"Where there is an act of negligence which is not operating and active at the time of another which follows, which latter act is caused by a breach of duty which the party guilty of the last act of negligence owed to the injured party, the law will regard the last act of negligence as the superseding cause, and will not look beyond it to the first act of negligence unless the person guilty of the first act of negligence could reasonably have anticipated that the second or intervening act might, not improbably, but in the natural and ordinary course of things, follow his act of negligence". 62 Ga.App. at page 8, 7 S.E.2d at page 414.

This is a very different situation from a parked truck in a public street near an intersection in a municipality, where common experience tells us it is customary and often necessary for such vehicles to be stopped. In Gazaway's case, the driver of a school bus negligently discharged a child in the path of an oncoming automobile. It appeared in the Callahan case the truck created a cloud of dust and stopped in a highway so enveloped and in such a manner that an approaching car driver was practically blinded. If there is anything in Louisville & N. R. Co. v. Athon, 54 Ga. App. 787, 189 S.E. 563, in conflict with what is here decided, that case by a divided court must give way to the other and later Georgia cases which I have mentioned. See generally on this subject of intervening cause breaking the connection between the original wrongful act and the subsequent injury. Mayor, etc., of City of Macon v. Dykes, 103 Ga. 847, 848, 849, 31 S.E. 443; Andrews & Co. v. Kinsel, 114 Ga. 390, 392, 40 S.E. 300, 88 Am. St.Rep. 25; Southern R. Co. v. Webb, 116 Ga. 152, 42 S.E. 395, 59 L.R.A. 109; Postal Tel. Cable Co. v. Kelly, 134 Ga. 218, 67 S.E. 803; Atlantic Coast Line R. Co. v. Daniels, 8 Ga.App. 775, 70 S.E. 203; City of Albany v. Brown, 17 Ga.App. 707, 88 S.E. 215; Means v. City of Barnesville, 28 Ga.App. 671, 112 S.E. 739; Horton v. Sanchez, 57 Ga.App. 612, 613, 618, 195 S.E. 873; Barnwell v. Solomon, 59 Ga.App. 507, 1 S.E.2d 463; Stallings v. Georgia Power Co., 67 Ga.App. 435, 20 S.E.2d 776.

The motions to remand should be and are denied.

II. Motions to Dismiss and for Summary Judgment and Judgment on the Pleadings

It follows from what has been said touching the motions to remand that the local defendants, the owner of the parked truck and its driver,¹⁴ should be dismissed as party defendants for failure to state a claim for relief as against them. And with them goes the alleged insurance carriers,¹⁵ for if there is no liability against the one there is none against the others. And it is so ordered. This makes it unnecessary to pass on the other grounds for dismissal urged by the insurance carriers only.

There remains, however, the motions for judgment on the pleadings and for summary judgment by the owner of the gasoline truck¹⁶ and its driver¹⁷ on the ground that no claim for relief is stated against them, and that the uncontroverted facts show they are not liable, and there are also motions to dismiss by the insurance carrier of the gasoline truck owner¹⁸ on the ground it has been improperly joined as a defendant. I think a case is stated against the owner and driver of the gasoline truck, and the motions for judgment filed by them are, therefore, overruled.

A different question presents itself on the motion of the insurance carrier.¹⁹ It appears from the pre-trial conference and affidavits then presented that the owner of the gasoline truck, a motor common...