Hogan v. Williams

• Decision Date: 09 January 1952
• Docket Number: No. 13699.,13699.
• Parties: HOGAN et al. v. WILLIAMS et al.
• Court: U.S. Court of Appeals — Fifth Circuit

193 F.2d 220 (1951)

HOGAN et al. v. WILLIAMS et al.

No. 13699.

United States Court of Appeals Fifth Circuit.

December 7, 1951.

Rehearing Denied January 9, 1952.

Larry E. Pedrick, Wilson G. Pedrick, Waycross, Ga., for appellants.

E. O. Blalock, Waycross, Ga., for appellees.

Before McCORD, RUSSELL, and RIVES, Circuit Judges.

RUSSELL, Circuit Judge.

The appeal in this case results from the trial of two separate actions by two mothers to recover, under the wrongful death statute of Georgia,¹ for the deaths of their daughters who were killed in a collision between a truck and a school bus, upon which they were passengers. The Court directed that the actions be tried together. The jury returned verdicts against the appellants in favor of the respective complainants in the amounts of $40,000.00 for each. The defendants in the trial Court were Sherman B. Hogan, driver of the truck; Central Truck Lines, Inc., owner or lessee of the truck; Fireman's Fund Indemnity Company, insurer of the truck under the provisions of the Georgia statute with reference to motor carriers for hire;² and J. W. Lowder, the driver of the school bus. Central Truck Lines, Inc., was not named as a defendant in the suit of Carrie Jackson. The complaint was predicated upon allegations that the negligence of the driver of the truck and the driver of the school bus concurred in causing the deaths, so that the defendants were liable as joint tort feasors. The answer and defense of each defendant charged that the negligence of the other was the sole proximate cause of the fatal collision. The bus was not a county school bus, but one owned by the negro members of the Center High School Athletic Association in support of the athletic activities of their children and of which Naomi Jackson, the teacher killed in the accident, was a member. Lowder urged the additional defense against the complainants that the bus was being driven "as an agent in a joint enterprise for the benefit of one of its members (Billie D. Williams) and also a fellow servant and employee (Naomi Jackson, the teacher)." Appellants here are the "truck defendants", since Lowder was discharged by the jury's verdict.

The collision occurred on January 21st, 1950, at about 1:30 o'clock, A. M., some 16 miles south of Waycross, Georgia, when the school bus, on its return from a basketball game in Jacksonville, Florida, driven by Lowder and carrying 32 passengers, including the deceased, and traveling northward on U. S. Highway No. 1, struck the rear of a semi-trailer truck driven by Hogan, and caused the death of the two passengers, Billie Williams, aged 18, a student, the daughter of the complainant-appellee, Anna Laura Williams; and Naomi Jackson, aged 22, a teacher, the daughter of complainant-appellee, Carrie Jackson.

Lowder testified that he was driving about 40 miles per hour when he observed the truck ahead of him, going in the same direction, and traveling about 30 miles per hour. There was no traffic, no obstructions, and the night was not foggy. Lowder followed the truck about a quarter of a mile, and since he was traveling faster than the truck he slowly closed the distance between them until he was about 25 or 30 feet behind the truck. He blinked his lights three or four times, intending to go around the truck, but at this moment the truck, without any kind of physical signal, suddenly stopped. Lowder immediately applied his brakes and cut sharply to the left. There was not sufficient space in which the bus could then pass the truck and the right side of the bus struck the left rear of the truck. The witness stated, "The truck was standing still when I hit it."

Hogan testified that he was driving not more than 30 miles per hour when he noticed some bright lights approaching him from the rear. Suddenly he "felt the thud or heard it," and he then applied his (air) brakes. Almost simultaneously there was a second thud harder than the first. There was no obstruction on the roadway, — the truck was stopped because of the first thud. Simmons, a relief driver who was in the truck, testified to the same effect. Harrison, another truck driver who was driving a van for Central Truck Lines, Inc., in the vicinity at the time, testified that a school bus passed him about 15 miles from the scene of the accident traveling about 60 miles per hour. There was evidence that both vehicles skidded a number of feet according to tire marks on the road; there was debris and dirt where the two vehicles were stopped and none at any other place on the road, indicating that the impact occurred at that point; and also testimony that more debris fell to the pavement when the vehicles were separated.

The appellants urge specified errors common to both cases and additionally, as confined to the Williams case, strenuously contend that the evidence wholly failed to establish the necessary dependency and contribution to authorize a recovery by Anna Laura Williams, so that the Court erred in refusing to direct, upon motion, a verdict for defendants in that case. We shall consider this assignment of error first.

The facts upon which the claim of the requisite statutory dependency and contributions³ is based are not in material dispute. The question is whether the showing was sufficient to present a question for the determination of the jury. We think they were and we therefore find no error in the trial Court's refusal to grant the motion for a directed verdict. The complainant's evidence upon this score is fairly summarized in the appellee's brief. We set it forth in the margin.⁴ Plaintiff's mother, Claudia Myrick, the grandmother of the deceased child, testified to the same effect.

In support of their contention that the evidence shows that Anna Laura Williams was not dependent upon her daughter for support, and that the deceased daughter did not contribute to her support, appellants cite, among other cases, Ga. Railroad & Banking Co. v. Spinks, 111 Ga. 571, 36 S.E. 855; Savannah Electric Co. v. Bell, 124 Ga. 663, 53 S.E. 109; Atlantic Coast Line R. Co. v. McDonald, 135 Ga. 635, 70 S.E. 249; Trammell v. Southern Ry. Co., 5 Cir., 1910, 182 F. 789; and Fuller v. Inman, 10 Ga. App. 680, 74 S.E. 287. In the Spinks case, the Supreme Court of Georgia held that a father could not recover for the homicide of his son who contributed money to him to aid in supporting his family, consisting of a second wife and children, if the father's earnings were sufficient to support himself. This decision was followed by a divided court in the Trammell case, supra, and was cited in the McDonald case, supra, and Fuller case, supra, but was not controlling in the latter two cases. The Bell case, supra, is not in direct point with the instant proceeding, but its implication is that were the parent financially independent of money contributed by her daughter, she could not recover for the homicide of the child. In the cases relied upon, it must be noted that, with the exception of the Trammell case, supra, which was controlled by the Spinks case, the only contributions relied upon were those in money, there being no allegations that the parent depended upon or received contributions from the child in the form of services.

The substance of the Georgia rulings may be summarized as follows: Dependence for support need not be complete to enable a parent to recover for the homicide of a child; partial dependence accompanied by substantial contribution is sufficient,⁵ and such contributions may be either in money or services,⁶ and may be only slight.⁷ A mother may be dependent on her child for support notwithstanding the fact that she may contribute more to his support than the child contributes to her support. It is immaterial to a determination of a mother's dependency that the child does not earn a sufficient sum to support himself or that he consumes more than he contributes.⁸ No fixed, definite rule can be laid down which would be applicable in all cases, but each case must depend upon its own peculiar facts.⁹ In Scott v. Torrance, supra, 69 Ga.App. 309, 25 S.E.2d 126, the Court stated, "* * * Services of a child to a mother or of a mother to a child may well be reckoned as contributing substantially to the support of the recipient far beyond any money value which the services may have, and the chief element of dependence may be in respect to personal services of that nature."

With these later rulings in view, and considering that the rule applicable to the Spinks case, supra, has, with but one exception,¹⁰ never been applied in any other case by the Georgia Courts, but to the contrary, recovery has been allowed in similar cases,¹¹ the law of that case, if applied at all, should be restricted to the facts in that case. The later Georgia decisions doubtless are influenced by increased recognition of the nature and purposes of the statute, — partly compensatory, and partly penal. Western & Atlantic R. Co. v. Michael, 175 Ga. 1, 165 S.E. 37.

In any event, the Court is not here confronted with a situation similar to those in the cases cited by the appellant. The evidence shows, without contradiction, that the deceased child cared for Anna Laura Williams' mother, her grandmother, and if she had not performed these services her mother would have had to hire someone else to perform them. In addition to attending to her grandmother for her parent, the daughter ran errands for her mother; kept her mother informed as to the grandmother's condition; and disbursed money sent by her parent for the benefit of her grandmother, as well as for herself. While these services rendered to Anna Laura Williams by her daughter would meet the test of partial and/or slight support, the circumstances and facts of this case disclose that a far greater contribution was made to the support of the mother by the daughter by staying with her grandmother, which enabled her parent to go elsewhere and seek and obtain employment with greatly increased...