Gentry v. Jett

• Decision Date: 01 June 1959
• Docket Number: Civ. A. No. 1472.
• Citation: 173 F. Supp. 722
• Parties: Albert Frank GENTRY, Plaintiff, v. Charles R. JETT, Defendant.
• Court: U.S. District Court — Western District of Arkansas

173 F. Supp. 722

Albert Frank GENTRY, Plaintiff, v. Charles R. JETT, Defendant.

Civ. A. No. 1472.

United States District Court W. D. Arkansas, Fort Smith Division.

June 1, 1959.

Sam Sexton, Jr., Ft. Smith, Ark., Collins, Edwards, Core & Collins, DeQueen, Ark., for plaintiff.

Boyd Tackett, Texarkana, Ark., George Steel, Nashville, Ark., Shaw, Jones & Shaw, Ft. Smith, Ark., for defendant.

JOHN E. MILLER, Chief Judge.

The defendant, Charles R. Jett, has moved the court to dismiss the complaint of plaintiff, Albert Frank Gentry, and for cause has alleged:

1. That the complaint fails to state a claim upon which relief can be granted in that as shown therein the claim of plaintiff is based upon alleged damages for personal injuries received by him in an accident that occurred on June 22, 1958, near Tulsa, Oklahoma, when a truck belonging to the defendant and being driven by the plaintiff collided with a St. Louis-San Francisco Railway Company freight train at a crossing on Oklahoma State Highway No. 11;

2. That on October 3, 1958, the plaintiff filed suit No. 2340 in the Sebastian Circuit Court, Fort Smith District, against the railway company, in which he alleged that the accident was caused and occasioned by reason of the negligence of the railway company; that answer was filed to the complaint by the railway company and judgment was entered against the railway company and in favor of the plaintiff for $4,500 damages; and that said judgment was paid and satisfied in open court.

3. That the action of the plaintiff in filing suit against the railway company as a tort-feasor, in pursuing the same to a judgment, and obtaining satisfaction of the said judgment by payment thereof by the railway company is and constitutes a complete bar to any action upon the same cause or claim against this defendant as an alleged joint tort-feasor.

Upon the service and filing of the motion, the plaintiff moved for and was granted an extension of time to prepare a memorandum brief in opposition to the motion, and in response to the motion of the plaintiff for extension of time the court entered an order on March 4, 1959, allowing plaintiff 20 days "in which to prepare and file herein a brief in opposition to defendant's motion to dismiss."

Within the 20 days allowed the plaintiff for filing the brief in opposition to the motion of defendant, the plaintiff filed a response in which he alleged that the motion to dismiss should be overruled for the reason that the judgment sought to be relied upon by the defendant was by appropriate order of the Sebastian Circuit Court, Fort Smith District, vacated and set aside on March 18, 1959.

Upon the filing by plaintiff of such response to the motion to dismiss, the defendant filed a reply to the response, in which he alleged that there had been certain developments bearing on and pertinent to the issue raised by the motion to dismiss which have occurred since the filing of the motion, of which the court should be apprised. The defendant then proceeded to set forth the developments that had occurred since the filing of the original motion. The developments referred to will be hereinafter enumerated.

Fed.R.Civ.P., 12(b) (6), 28 U.S.C.A., provides that the defense of failure to state a claim upon which relief can be granted may at the option of the pleader be made by motion.

"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

The same provision is made in 12(c), supra, when a motion for judgment on the pleadings is presented.

Fed.R.Civ.P., 56(c), provides:

"The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

There is no genuine issue as to any material fact reflected by the record before the court. Thus the question to be determined is whether, upon the record before the court, the defendant is entitled to a summary judgment as a matter of law for the reasons shown in the record. In order to decide the question it is necessary to briefly set forth the contents of the record and, because of the extraordinary developments, the court feels that the contents should be set forth chronologically.

On February 11, 1959, the plaintiff filed his complaint herein, in which he alleged that he is a citizen and resident of the State of Texas, and that the defendant is a citizen and resident of the Western District of Arkansas.

That he, the plaintiff, on June 21, 1958, was employed by the defendant to drive defendant's 2-ton truck, loaded with 150 bushels of cucumbers, to Wichita, Kansas, and return the truck to Wickes, Arkansas, for an agreed consideration of $25; That the plaintiff drove the truck toward Wichita, Kansas, and while thus driving the truck near the city of Tulsa, Oklahoma, and while driving at a reasonable rate of speed, the brakes on the truck failed causing the said truck to collide with a Frisco freight train, and injuring the plaintiff. Then follows allegations of the injuries received.

The plaintiff further alleged that the truck which the defendant furnished him was equipped with defective brakes, and that the defendant had actual, positive knowledge that the brakes were defective and in need of repair, but that the defendant negligently failed and omitted to have the needed repair work done; that the nature of the brake defect was such that it could not be discovered by inspection by the plaintiff; that the defendant, although knowing that the brakes were defective, wholly failed, neglected and omitted to warn the plaintiff of the hidden defect in the brakes, and "that the negligence of the defendant in failing, neglecting and omitting to warn the plaintiff of the defective condition of the brakes was the sole, direct and proximate cause of the accidental injuries sustained by the plaintiff."

The plaintiff prayed judgment against the defendant for a sum in excess of $10,000 for damages for personal injuries, loss of time, medical expenses, pain and suffering, and personal disfigurement.

Upon the service of summons issued on the complaint, the defendant filed his motion to dismiss as heretofore set forth, and attached to the motion a copy of a complaint which the plaintiff had filed at 11:00 a. m., on October 3, 1958, in the Sebastian Circuit Court against the St. Louis-San Francisco Railway Company to recover damages for the same accident or collision of the truck and the freight train.

In paragraph II of the complaint of plaintiff against the railway company, the plaintiff alleged:

"That on the 22nd day of June, 1958, plaintiff was driving a 1956 Chevrolet truck owned by Charles R. Jett of Wickes, Polk County, Arkansas, in a northerly direction on Oklahoma State Highway 11 approximately two miles east of the City of Tulsa, Oklahoma, when he was struck by a freight train owned and being operated by the defendant, St. Louis-San Francisco Railway Company, through its agents, servants and employees; that the said accident was the sole and proximate result of careless and negligent acts by the said agents, servants and employees of the defendant, St. Louis-San Francisco Railway Company, acting within the scope of their employment; that the said acts of negligence were as follows:

"(a) That said defendant, through its agents, servants and employees, carelessly and negligently failed to signal the approach of said freight train to said Oklahoma State Highway 11 as required by law.

"(b) That the defendant's servants, agents and employees carelessly and negligently failed to maintain a lookout as required by law.

"(c) That the defendant's agents, servants and employees carelessly and negligently operated said freight train at an excessive, unlawful and high rate of speed under the circumstances there existing.

"(d) That the defendant carelessly and negligently failed to maintain said crossing in proper condition and permitted it to be in a dangerous and hazardous state of repair.

"That the aforesaid careless and negligent acts were the sole proximate cause of the accident which occurred between the truck being operated by said plaintiff and the defendant's freight train, resulting in severe and permanent injuries to the plaintiff as hereinafter set forth more fully."

Also attached to the motion is a copy of the answer of the defendant, St. Louis-San Francisco Railway Company, to said complaint, filed in the Sebastian Circuit Court at 11:00 a. m., October 3, 1958, in which answer the defendant alleged:

"* * * that the accident in question was the sole proximate result of the careless and negligent acts of the plaintiff, Albert Frank Gentry in that he

"(a) carelessly and negligently failed to maintain a proper lookout;

"(b) carelessly and negligently operated his automobile at a high, unlawful and dangerous rate of speed under the circumstances existing;

"(c) carelessly and negligently failed to yield the right of way to the approaching train of the defendant;

"(d) carelessly and negligently failed to maintain his vehicle under proper control so as to be able to avoid said accident.

"That the aforesaid careless and negligent acts of the plaintiff were the sole proximate cause of said accident, or, in the alternative, were a contributing cause and constitute contributory negligence equal or in excess of any negligence on the part of said defendant and bar any recovery by plaintiff herein."

Following the filing of the complaint and the answer, the court on the same date, October...