General Electric Company v. Moretz, 7878.

• Decision Date: 16 September 1959
• Docket Number: No. 7878.,7878.
• Citation: 270 F.2d 780
• Parties: GENERAL ELECTRIC COMPANY, Defendant and Third-Party Plaintiff, Appellant, v. Kelly C. MORETZ, Plaintiff, and Mason & Dixon Lines, Inc., Third-Party Defendant, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

270 F.2d 780 (1959)

GENERAL ELECTRIC COMPANY, Defendant and Third-Party Plaintiff, Appellant, v. Kelly C. MORETZ, Plaintiff, and Mason & Dixon Lines, Inc., Third-Party Defendant, Appellees.

No. 7878.

United States Court of Appeals Fourth Circuit.

Argued June 22, 1959.

Decided September 16, 1959.

COPYRIGHT MATERIAL OMITTED

John H. Doughty, Knoxville, Tenn., and John H. Locke, Roanoke, Va. (Gentry, Locke & Rakes, Roanoke, Va., and Hodges, Doughty & Carson, Knoxville, Tenn., on the brief), for appellant.

A. Linwood Holton, Jr., Roanoke, Va. (Eggleston & Holton, Roanoke, Va., Todd & Todd, and Dodson & Dodson, Kingsport, Tenn., on the brief), for appellee Kelly C. Moretz.

John H. Thornton, Jr., Roanoke, Va., and Duke Duvall, Oklahoma City, Okl. (Woods, Rogers, Muse & Walker, Roanoke, Va., on the brief), for appellee Mason & Dixon Lines, Inc.

Arthur E. Smith and Evans B. Jessee, Roanoke, Va., on the brief for Liberty Mut. Ins. Co.

Before SOBELOFF, Chief Judge, SOPER, Circuit Judge, and THOMSEN, District Judge.

SOPER, Circuit Judge.

This suit was brought by Kelly C. Moretz against the General Electric Company for injuries suffered by him while driving a trailer truck in which heavy crated electric control panels and other electrical equipment belonging to General Electric had been negligently loaded. Moretz was an employee of The Mason & Dixon Lines, Inc., a common carrier, which owned the vehicle and undertook the transportation of the shipment. In the first instance, the cargo was placed in the trailer by employees of General Electric at its plant in Salem, Roanoke County, Virginia. It was loaded in such a fashion that an open space was left in the center of the trailer without bracing, allowing the cargo to shift in the course of the subsequent journey. In this condition the trailer was turned over to a pickup driver of Mason & Dixon, who delivered it without mishap to the Mason & Dixon terminal eight or nine miles away at Roanoke, Virginia. There the trailer was sealed and turned over to the plaintiff, an over-the-road driver of Mason & Dixon, to be driven to its ultimate destination in Alabama. No change was made in the disposition of the cargo, although Mason & Dixon had notice that it was improperly stowed. During the subsequent trip the load suddenly shifted as the vehicle rounded a turn in the road near Roanoke, causing the trailer to overturn and injure the driver; and this suit was brought to recover for his injuries.

After the institution of the suit, General Electric filed an answer in which it denied that it had been guilty of any negligence which caused the accident. With the leave of the court it also filed a third-party complaint against The Mason & Dixon Lines, wherein it alleged that the carrier had the duty to inspect the shipment and to decline it if it was improperly loaded and that its failure to perform these duties was the proximate cause of the accident; and that even if General Electric was guilty of negligence in loading the trailer improperly in the first place, it was entitled to indemnity from the carrier for any damages recovered by the plaintiff since the fault of Mason & Dixon in transporting the goods, with notice of faulty stowage, was so grave as to throw the whole loss upon it.

In response to the third-party action, Mason & Dixon filed an answer, which in effect denied liability, and also moved the court for a separate trial of the issues raised by the plaintiff. In addition, Mason & Dixon moved the court to dismiss the third-party complaint on the ground that the plaintiff in the original suit had been paid compensation for his injuries under the Workmen's Compensation Act of Tennessee as an employee of Mason & Dixon and that under § 50-908 of the Tennessee Code the plaintiff's right to compensation was exclusive of all other rights and remedies against his employer. The court, however, declined to pass upon the motion to dismiss at that time and the case of the plaintiff against General Electric proceeded to trial before the jury in which all parties participated. Prior to the trial the judge announced that the case would be first submitted to the jury on the question of the primary negligence of General Electric and its liability to the plaintiff and that any action thereafter upon the third-party complaint would take the form of a special interrogatory to the jury in order to enable the court to determine the liability of the carrier to indemnify the shipper. Accordingly, the jury were instructed that their verdict must be confined to the issue of the liability of General Electric to the plaintiff and that Mason & Dixon was in the case because of the contention that it was liable to General Electric, but that the jury should not bring in any verdict in favor of the plaintiff against Mason & Dixon. The jury returned a verdict in favor of the plaintiff against General Electric in the sum of $35,000 and thereupon the District Court submitted a special interrogatory to the jury as to whether Mason & Dixon was guilty of negligence which proximately contributed to the accident and the resulting injuries to the plaintiff. The jury answered this interrogatory in the affirmative. The uncontradicted evidence in the case showed that Mason & Dixon transported the goods with knowledge that they were insecurely loaded.

Prior to the trial the Liberty Mutual Insurance Company filed a petition setting forth that it had insured Mason & Dixon against liability under the Workmen's Compensation Act of Tennessee and had paid certain benefits on behalf of the carrier to the plaintiff and it therefore claimed subrogation to the right of the carrier to recover the benefits that it had paid under the Act. After the jury retired to consider the verdict the Insurance Company proved that it had paid, under the statute, the amount of $1665.99 to the plaintiff and in the final judgment of the court it was ordered that the General Electric Company pay this sum to the Insurance Company out of the amount awarded to the plaintiff by the jury's verdict, less ten per cent which was ordered to be paid to plaintiff's attorneys for services rendered.

We consider first the contention of General Electric, that a motion for a directed verdict in its favor should have been granted because under the undisputed facts of the case the injuries were not caused by the negligence of General Electric but by the intervening independent negligence of Mason & Dixon and, second, because the plaintiff himself was guilty of contributory negligence. In respect to the first defense, reliance is placed upon the rule in Virginia, where the accident occurred, that if a second tort-feasor is aware or should be aware of a potential danger created by the negligence of an original tort-feasor and thereafter, by an independent act of negligence brings about an accident, the dangerous condition created by the first actor is regarded merely as an incident which is insulated by the independent wrongful act of the second actor, and the latter's negligence is regarded as the sole proximate cause of the accident. Thus, in Hubbard v. Murray, 173 Va. 448, 3 S.E.2d 397, a bus which had been carelessly parked on the highway in violation of the statute was struck in the rear, in broad daylight, by a carelessly driven truck which then careened across the road and killed an occupant of an oncoming car, and it was held that the driver of the truck was liable for the accident. See also Edgerton v. Norfolk Southern Bus Corp., 187 Va. 642, 47 S.E.2d 409.

The District Judge correctly held that this rule is not applicable in the pending case because there was no independent act of negligence but merely passive inaction on the part of Mason & Dixon in failing to correct the dangerous condition which General Electric had created. The general rule in such a situation is set forth in the Restatement of Torts as follows:

"§ 452. Failure of a third person to perform a duty owing to another to protect him from harm threatened by the actor\'s negligent conduct is not a superseding cause of the other\'s harm.

"Comment:

"a. * * * The third person\'s failure to perform his duty in this respect makes him concurrently liable with the negligent actor for any harm which results from the actor\'s negligence and which would have been prevented by the performance of the third person\'s duty."¹

We had occasion to consider a similar question in Pierce v. Ford Motor Co., 4 Cir., 190 F.2d 910, where the negligence of the manufacturer in delivering a defective car to a dealer in Virginia led to an accident and the defense was that the car had been subsequently inspected by an employee of the dealer. In overruling the defense we said (190 F.2d at page 913):

"It is argued that any negligence of the manufacturer in turning out a defective car is insulated by that of a mechanic who inspects it afterwards so that the latter will be deemed the proximate cause of any injury resulting from its defective condition; but this argument is entirely without merit. As said in Harper on Torts, ch. 7 sec. 106, quoted in Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517, 529: `A negligent defendant cannot escape liability because of a failure on the part of some third person to perform an affirmative duty which, if properly performed, would have enabled the plaintiff to avoid the risk created by the defendant\'s negligence. The failure of the other to inspect adequately may make him liable to the party harmed, but it will not relieve the defendant whose negligence was responsible for the hazard in the first place.\'

"As we pointed out in Atlantic Greyhound Corp. v. McDonald, 4 Cir., 125 F.2d 849, 852: `It is well settled under the law of Virginia that "a cause, to be a superseding cause, must entirely supersede the operation of the negligence of the defendant, so that such cause alone, without the defendant\'s negligence contributing in the slightest degree thereto, in

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