Hortman v. Henderson

• Decision Date: 23 October 1970
• Docket Number: No. 17758.,17758.
• Citation: 434 F.2d 77
• Parties: Lullie HORTMAN, Special Administratrix of the Estates of Ester B. Hortman and Albert Hortman, Deceased, Plaintiff-Appellant, v. John W. HENDERSON and Stahly Cartage Company, an Illinois Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

434 F.2d 77 (1970)

Lullie HORTMAN, Special Administratrix of the Estates of Ester B. Hortman and Albert Hortman, Deceased, Plaintiff-Appellant, v. John W. HENDERSON and Stahly Cartage Company, an Illinois Corporation, Defendants-Appellees.

No. 17758.

United States Court of Appeals, Seventh Circuit.

October 23, 1970.

COPYRIGHT MATERIAL OMITTED

Harvey L. McCormick, Kansas City, Mo., for plaintiff-appellant.

John M. Moelmann, D. Kendall Griffith, Leonel I. Hatch, Jr., Chicago, Ill., for defendants-appellees; Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, Ill., of counsel.

Before KILEY, KERNER and PELL, Circuit Judges.

PELL, Circuit Judge.

On the morning of July 29, 1966, at about 5 a. m., in the state of Missouri, an automobile driven by one Mary Hortman in which Albert Hortman and Ester Hortman, father and son, being plaintiff's decedents herein, were passengers, collided with a tractor-trailer of defendant Stahly Cartage Company, driven at the time by the defendant, John W. Henderson. As a result of the collision, Albert and Ester Hortman, as well as the driver of the vehicle in which they were passengers, were killed. The deceased persons as well as the other occupants of the automobile were residents of Wisconsin and Stahly was an Illinois corporation with its principal office in Illinois. A wrongful death action was filed by the plaintiff special administratrix in the Northern District of Illinois. The district judge dismissed the action insofar as the claim arising out of Albert Hortman's death was concerned but permitted the case to go to the jury in regard to the claim arising from the death of Ester B. Hortman. The jury returned a verdict for both defendants.

Error is claimed in three respects on this appeal but we find validity in only one of the three asserted grounds.

The accident having occurred in Missouri, the law of that state was controlling on substantive matters. Hortman contends that the jury was not adequately instructed on the Missouri Humanitarian Doctrine. Plaintiff tendered an instruction incorporating the applicable portion of the Missouri statute, 16 Vernon's Ann.Mo.Stat. § 304.010, which reads as follows:

"1. Every person operating a motor vehicle on the highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care."

Plaintiff's tendered instruction was given by the court but the court refused to add as an additional paragraph to the tendered instruction the following:

"You are further instructed that under the aforementioned statute, it is the duty of an operator of a motor vehicle, after receiving notice that a collision is imminent, to use all means within his power to avoid such collision, if this can be done with reasonable safety to himself."

In our opinion the jury was adequately advised as to the law of the State of Missouri and the additional tendered paragraph was merely argumentative and was properly refused by the court.

Further, it is to be noted that the additional paragraph tendered fails to include all of the elements of the Humanitarian Doctrine as contained in the Missouri approved jury instructions, Instructions 17.14 1964, and the tendered paragraph therefore might well have been confusing rather than helpful to the jury.

Hortman also contends that the claim arising out of the death of Albert Hortman was improperly dismissed. In dismissing, the district judge relied on Hortman's counsel's admission that the only pecuniary damages were funeral expenses and that there had been recovery from the insurer of the automobile in which Albert Hortman was a passenger in excess of those expenses. In Missouri it has been held that while concurrent negligence gives a cause of action against each participant, in such case there can be but one satisfaction and when there has been a satisfaction, that completes the remedy. Myers v. Kennedy, 306 Mo. 268, 281, 267 S.W. 810, 814-815 (1924). On this appeal Hortman has failed to show any error in the dismissal of the Albert Hortman claim.

The third claimed basis of error was that the district judge over objection permitted Henderson to testify regarding the facts and circumstances of the accident. In this respect Hortman contends that Henderson was incompetent as a witness because of the necessary applicability of the Illinois "dead man" statute, Ill.Rev.Stat. Ch. 51, § 2 (1969), pertinent portions of which read as follows:

"No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, * * * when any adverse party sues * * * as the * * * administrator * * * of any deceased person * * * unless when called as a witness by such adverse party so suing * * * and also except in the following cases, namely:

* * * * * *

"Third — Where, in any such action, suit or proceeding, any such party suing * * * or any persons having a direct interest in the event of such action, suit or proceeding, shall testify in behalf of such party so suing * * * to any * * * transaction with the opposite party or party in interest, then such opposite party or party in interest shall also be permitted to testify as to the same conversation or transaction."

While the substantive law of the State of Missouri was controlling on the district court in the trial, the matter of competency of the witness to testify has to be determined under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. Rule 43(a), Federal Rules of Civil Procedure. Since the trial was held in the Northern District of Illinois, it is necessary for us to turn to the law of that state to determine the validity of Hortman's objection.

At the outset of our inquiry it must be observed that if for any reason Henderson had been determined to be an incompetent witness, his inability to testify would have been manifestly unfair to the defendants in the trial below. The record demonstrates adequately, although all of the testimony was not brought up on this appeal as part of the record, the following factual situation.

The six occupants of the automobile in question had been in Louisiana to attend the funeral of Albert Hortman's wife. The automobile was apparently registered in the name of a Milwaukee church but was generally used by the minister of the church, Rev. Rudolph Bates, who officiated at the funeral. Bates was a cousin by marriage of Ester Hortman. Daisy Lee Hall, an occupant of the automobile, was a niece of Albert Hortman and a cousin of Ester Hortman. Various occupants of the automobile alternated in driving it and the group had left Louisiana about 6 p. m. They had driven, with only short stops, steadily through the night until the accident happened the following morning in Missouri. Both Bates and Hall testified at the trial of this cause and, while their testimony was not made a part of the record, their pretrial depositions are in the record and there is no indication that they deviated from the deposition when testifying at the trial. Each stated by way of deposition, inter alia, that the truck was zigzagging toward them prior to the collision. Henderson's testimony in general faulted the automobile as the cause of the accident and apparently the jury believed his version.

The manifest unfairness arises from the fact that if Henderson had not been permitted to testify then the only testimony from eye witnesses, as far as we can tell from the record, would have been that of Bates and Hall, who were related by blood or marriage to the decedents and who presumably would have been friendly to their cause. As far as we can tell from the record, their testimony would have been unchallenged except by circumstantial evidence.

Notwithstanding the manifest unfairness, it is not our function, if the law of Illinois has been established in this particular area, to determine what it ought to be but rather what it is.

"Although the state competency statutes are generally satisfactory under Rule 43(a), FRCP there is one notorious exception which requires special attention. Most states have seen fit to enact `dead man' statutes which in theory and practice have proved unsatisfactory. Their existence precludes the proper determination of many a just and proper cause of action or defense." 5 Moore, Federal Practice ¶ 43.05, p. 1352 (1969). See also Callahan & Ferguson, Evidence and the New Federal Rules of Civil Procedure, 47 Yale L.J. 194, 198 (1937).

In permitting Henderson to testify, the district judge principally relied on the fact that the attorneys for the defendants had "assured this court that neither the corporate defendant nor its insurer, both of whom are quite solvent, would look to the driver for any part of any judgment." While the record would scarcely seem to support the unequivocal nature of the assurance to the court¹ and while we are aware that recently a company engaged in the transportation business, i. e., Penn-Central, with supposedly considerably greater assets than Stahly, has become involved in bankruptcy courts, nevertheless, even though there had been no question of solvency and even though both Stahly and its insurers had by written enforceable instrument warranted that neither would look to Henderson for any part of any judgment, this would not, in our opinion, remove Henderson's incompetency under the Illinois statute. The district judge apparently proceeded on the theory that the dead man statute applied only to interested parties and that since neither Stahly nor its insurer were going to look to Henderson for payment of any part of the judgment he thereby was no longer an interested party. Neither the Illinois statute nor the cases thereunder support this position.

The statute itself is worded...