Glover v. Daniels, EC 6920-S.

• Decision Date: 23 March 1970
• Docket Number: No. EC 6920-S.,EC 6920-S.
• Citation: 310 F. Supp. 750
• Parties: Mrs. Frances Wood GLOVER et al., Plaintiffs, v. Mrs. Mary E. DANIELS, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

310 F. Supp. 750

Mrs. Frances Wood GLOVER et al., Plaintiffs, v. Mrs. Mary E. DANIELS, Defendant.

No. EC 6920-S.

United States District Court, N. D. Mississippi, E. D.

March 23, 1970.

Hunter M. Gholson, of Burgin, Gholson & Hicks, Columbus, Miss., for plaintiffs.

William J. Threadgill of Threadgill & Smith, Columbus, Miss., for defendant.

OPINION

ORMA R. SMITH, District Judge.

This case is before the Court on plaintiffs' motion to set aside the verdict of the jury and the judgment of the Court rendered thereon and to grant plaintiffs a new trial on the sole issue of damages.

The case was tried to a jury in the United States Courthouse at Aberdeen, Mississippi on November 10, 1969. The jury returned a verdict of $10,000.00 for plaintiffs and judgment was accordingly entered. The parties have submitted excellent and extensive briefs on the issues involved and they have been carefully considered by the Court.

On or about December 13, 1968, shortly before 8:00 p. m., James B. Glover was driving an automobile northward on U. S. Highway #45, south of Hamilton, Mississippi, and at said time and place the defendant was driving her automobile in a southerly direction on said highway. A collision occurred between the two automobiles resulting in the death of James B. Glover.

Decedent's wife, Mrs. Frances Wood Glover, individually and as the mother and next friend of decedent's five minor children, brought suit in the Circuit Court of Lowndes County, State of Mississippi, against defendant seeking to recover actual and punitive damages in the sum of Five Hundred Thousand Dollars ($500,000.00), together with all costs. The suit was timely removed to this Court pursuant to the provisions of 28 U.S.C.A. § 1441 et seq., there being diversity of citizenship and there being involved the requisite amount. After entry of the judgment on the verdict of the jury, and within the time permitted by Rule 59(b), Federal Rules of Civil Procedure, plaintiff¹ filed a motion for a new trial on damages alone. Plaintiff asserts three grounds for relief: First, plaintiff asserts that the verdict is grossly inadequate and evidences prejudice, passion, and bias on the part of the jury; Secondly, that the Court committed error in instructing the jury regarding failure of decedent to use a seat belt provided for his use in the automobile, which he was driving and permitting the jury to give consideration thereto as an element of contributory negligence; Thirdly, that counsel for the defendant improperly argued to the jury in his summation, when discussing damages, that Americans killed in Vietnam received $10,000.00, being the limit.

The Court has no trouble in determining that an award of $10,000.00 is grossly inadequate for the life of a 44 year old male person, in good health, with a large family regularly and gainfully employed, and earning in excess of $13,000.00 per annum.

However, in the case sub judice, there was evidence before the jury from which the jury could reasonably find that the decedent was guilty of negligence which contributed to his injury. Questions of negligence and contributory negligence are usually for the determination of the jury. Section 1455, Mississippi Code 1942, Annotated. It is also settled that contributory negligence, though not a bar to recovery in Mississippi, acts to diminish damages, otherwise recoverable. Section 1454, Miss. Code, 1942, Annotated.² Under the circumstances of this case the Court cannot disturb the verdict of the jury on the ground of inadequacy.

The remaining grounds asserted and argued by plaintiff are: (1) the seat belt instruction contained in the charge to the jury³ (2) the alleged impropriety of remarks by defense counsel in his summation to the jury.⁴

In diversity cases, the federal courts apply State Substantive Law and Federal Procedural Law. Freeman v. Continental Gin Company.⁵ The Supreme Court of Mississippi has never spoken on the question of whether the failure of a motorist to use an available seat belt while driving or riding in an automobile on a public highway within the State can be considered by the jury as an act of negligence, contributing to any injury received by such motorist. In such a situation the Court's duty is well defined. Commenting on this duty the Fifth Circuit said in Jackson v. Sam Finley.⁶

"Where the highest court of the state has not authoritatively spoken, the federal court may assume that state law will accord with generally accepted principles of substantive law. * * * But in such a situation, a federal diversity court nevertheless has an obligation to carefully examine the rules of construction and the substantive approach of the state court in analogous areas in an attempt to derive `instructive guidance' from the state tribunal."

The Court must now make "an enlightened guess" as to the law of Mississippi on the subject. Necaise v. Chrysler Corporation.⁷

In the Court's research of the law only one Mississippi case has been located which makes reference to seat belts. Rivers v. Carpenter.⁸ The file in Rivers reflects that seat belt instructions were granted the defendant by the lower court, whereby the jury was permitted to consider non-use thereof, as an element of contributory negligence. The granting of the instructions was not assigned as error, on appeal, and consequently was not considered by the Court.

Rivers being the only Mississippi case found on the subject of seat belts, it is necessary for the Court to search other jurisdictions in order to determine, to the best of the Court's ability, the generally accepted principle of substantive law on the subject.

In a case of first impression Mississippi Courts look to other jurisdictions in determining the matter. Olin Mathieson Chemical Corp. v. Gibson's Pharmacy of Vicksburg, Inc.⁹

In support of her motion, plaintiff cites Brown v. Kendrick,¹⁰ where the Florida Supreme Court rejected the seat belt defense. This was an action by a minor guest passenger for injuries sustained by plaintiff while riding in an automobile owned by defendant and driven by his minor son. In that case the court said:

"It may be that after further research by various safety committees, the law may be changed to require the use of seat belts and to affix some element of negligence for failure to use same. This is not the law today and it is not within the province of this court to legislate on the subject, regardless of what might be the thinking of the individual members of this court. * * So, in this state of quandry, the plaintiff and defendant could each have argued on the merits of the use of seat belts, but each argument would necessarily have been conjectural and of doubtful propriety. * * * Certainly, as pointed out by the appellee, the plaintiff's failure to fasten her seat belt was not such negligence as to contribute to the occurrence of the accident, nor to be the proximate contributing cause of the injury in the absence of a showing that the accident could have been avoided in the absence of such a negligent act."¹¹

The United States District Court for the Northern District of Florida considered the question in Woods v. Smith.¹² This was a diversity action brought to recover damages for injuries sustained in an automobile accident which occurred in the State of Oklahoma. The question presented by the case was whether failure of a plaintiff to fasten and use a seat belt in an automobile, to which he had access, may be presented at the trial as contributory negligence barring recovery, or in the mitigation of damages. Oklahoma has a statute which makes it unlawful to sell a passenger vehicle manufactured after 1966 to any of its residents, if it is not equipped with safety belts or shoulder harness combinations, for use by passengers in the left or right front seat, but their use by drivers or passengers is not required. The court concluded that Oklahoma would not allow a failure to fasten and use seat belts to be presented either as evidence of contributory negligence, or in mitigation of damages, and in conclusion said:

"* * * there must be at least some indication that the plaintiff was under a duty to use a seat belt to provide for his own safety, and that failure to use it was a cause of plaintiff's injury, before the Court is required to submit the issue to the jury. The holding here is that, as a matter of law, there is no such duty, nor could such failure be a proximate cause of injury, and submission to the jury of the issue is not required."

The Florida district court based its opinion, as to proximate cause, on Oklahoma's definition of proximate cause:

"* * * that the proximate cause of any injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury and if the negligence merely furnishes a condition by which the injury was possible and a subsequent act caused the injury, the existence of such a condition is not the proximate cause of the injury * * *"¹³

The United States District Court for the District of Oregon considered the issue in Robinson v. Bone.¹⁴ The court said:

"Inasmuch as the Oregon legislation does not require the use of the belts, the failure to use, under Oregon law, is not negligence per se. Moreover, I find nothing in the Oregon decisions which would point to common law liability. From the public records of the Department of Motor Vehicles of the state of Oregon, I take judicial notice of the fact that an overwhelming majority of the automobiles now, and at the date of this accident, using the highways of this state, were sold and in use prior to November 1, 1964. It would be a strange common law rule which would bar recovery to a guest riding in a post-October belt equipped vehicle, while, on the same state of facts, permitting recovery to a guest riding in a pre-November vehicle, i. e. one not equipped with seat belts. For these, and many other reasons advanced in Miller, I hold that the mere failure to use a

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