Kimmel v. Yankee Lines

• Citation: 125 F. Supp. 702
• Decision Date: 09 November 1954
• Docket Number: Civ. A. No. 9891.
• Parties: Barbara E. KIMMEL, Administratrix of the Estate of Frank C. Kimmel, Deceased, v. YANKEE LINES, Inc., a corp.
• Court: U.S. District Court — Eastern District of Pennsylvania

125 F. Supp. 702

Barbara E. KIMMEL, Administratrix of the Estate of Frank C. Kimmel, Deceased, v. YANKEE LINES, Inc., a corp.

Civ. A. No. 9891.

United States District Court W. D. Pennsylvania.

November 9, 1954.

COPYRIGHT MATERIAL OMITTED

A. H. Rosenberg, Pittsburgh, Pa., for plaintiff.

William C. Walker (of Dickie, McCamey, Chilcote, Reif & Robinson), Pittsburgh, Pa., for defendant.

GOURLEY, Chief Judge.

These are Survival and Wrongful Death Actions based on negligence arising out of an automobile collision at a highway intersection which occurred in Pennsylvania.

The case was administered by jury trial.

In answer to specific interrogatories, the jury found that decedent was free of contributory negligence and defendant's negligence was the proximate cause of the accident.

A verdict was returned in favor of the plaintiff for $1,691 pursuant to the Survival Action, and $7,200 pursuant to the Wrongful Death Action.

The instant motion is for a new trial and/or judgment notwithstanding the verdict.

For purpose of brevity, plaintiff, Barbara E. Kimmel, Administratrix of the Estate of Frank C. Kimmel, deceased, will be designated as Kimmel, defendant, Yankee Lines Inc., a corporation, will be designated as Yankee and the Court of Common Pleas of Beaver County, Pennsylvania, will be designated as State Court.

The circumstances which surround the accident are as follows:

Kimmel had two passengers in his car as guests. He operated said vehicle on a road which intersected a through highway. After stopping his vehicle, he proceeded to cross the main highway and a collision occurred between his vehicle and a tractor trailer operated by Yankee.

Motion for New Trial

The general allegations are advanced that the verdict was against the evidence, the weight of the evidence and the law.

There was ample evidence in this case to justify the jury in its finding in favor of the plaintiff. It is my duty to recognize that a court is not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions, or because the court regards another result as more reasonable. Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Masterson v. Penna. R. Co., 3 Cir., 182 F.2d 793.

I have most carefully reviewed the record, and I am satisfied that the weight of the credible evidence, and inferences to be drawn therefrom, is sufficient to sustain the jury's findings.

Motion for new trial will be refused.

Motion for Judgment Notwithstanding Verdict Under Rule 50(b) of Federal Rules of Civil Procedure

In connection with a motion for judgment notwithstanding the verdict or for a directed verdict, it is not the province of the court to substitute its judgment for that of the jury. The choice of conflicting versions of the way the accident happened, the decision as to which witness was telling the truth, the inferences to be drawn from uncontroverted as well as controverted facts, are questions for the jury. Tennant v. Peoria & P. U. Ry. Co., supra; and where, as here, the case turns on controverted facts and the credibility of witnesses, the case is peculiarly one for the jury. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 572, 10 S.Ct. 1044, 34 L.Ed. 235; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 87 L.Ed. 610.

In my opinion the evidence clearly establishes negligence on the part of defendant Yankee and lack of contributory negligence on the part of the deceased, Kimmel. This fact, as heretofore stated, was found by the jury in answer to specific interrogatories.

What has been stated is not dispositive of the motion for a directed verdict or motion for judgment notwithstanding the verdict. A much more complex and intricate problem exists under the doctrine of res judicata.

Defendant Yankee confronts this court with a judgment entered in State Court, involving two of the parties to the instant proceeding.

It appears that passengers in Kimmel's car had filed suit against Kimmel and Yankee in State Court as joint defendants. The jury returned verdicts against Kimmel and Yankee, but the court entered judgment n. o. v. as to Yankee and sustained the verdict against Kimmel.

In this court the original answer of Yankee did not raise the defense of res judicata. Subsequent thereto, Yankee filed a motion for leave to file a supplemental answer as provided by Rule 15(d) of the Federal Rules of Civil Procedure, 28 U.S.C. Said motion was premised on the allegation that subsequent to the filing of the original answer the issues involved in the proceeding before this court became res judicata by virtue of proceedings in the State Court. Although the defense of res judicata was set forth in the supplemental answer as provided by Rule 8(c) of the Federal Rules of Civil Procedure, an associate member of this court denied Yankee the right to file said supplemental answer and ordered that the defense raised in the answer should be presented at the time of trial without further answer.

With due deference to my associate member of this court, I believe said denial was error for the reason that under the provisions of Rule 8(c) Yankee was required to present the affirmative defense of res judicata by an answer.

I must, therefore, conclude that the defense of res judicata was properly raised in the supplemental answer of the defendant Yankee and it was, therefore, proper under the provisions of Rule 8(c) of the Federal Rules of Civil Procedure to admit the exemplification of the records of the State Court in support of said defense.

Res judicata, resting as it does on a prior judgment or decree said to adjudicate a pending controversy, primarily involves matters of fact which must be established of record, as are other facts, before the defense may be appropriately raised. Jones v. Costlow, 354 Pa. 245, 249, 47 A.2d 259.

In support of the defense of res judicata Yankee, out of hearing of the jury, offered in evidence an exemplification of the records of the State Court:

(a) Frank L. Allison, plaintiff, v. Barbara E. Kimmel, Administratrix of the Estate of Frank C. Kimmel, deceased, and Yankee Lines, Inc., a corp., 118 Sept. Term, 1952, Court of Common Pleas of Beaver County, Pennsylvania.

(b) Donald Richard Cantwell, Administrator of the Estate of Arthur Vincent Cantwell, v. Barbara E. Kimmel, Administratrix of the Estate of Frank C. Kimmel, deceased, and Yankee Lines, Inc., a corp., 113 Sept. Term, 1952, Court of Common Pleas of Beaver County, Pennsylvania.

Said actions were consolidated for trial and verdicts were returned in favor of the plaintiff in each case against both defendants. Subsequent thereto, the State Court entered judgment in each of said cases in favor of the defendant, Yankee, and sustained the verdict of plaintiffs in said actions against Kimmel. Said judgments became final when no appeal was perfected by the plaintiffs or the defendant Kimmel in either of said actions.

In view of the complexities of the problem presented on the defense of res judicata, under the facts as presented in the proceeding before this court, the defendant's motion for judgment on the basis of res judicata was refused and the matter submitted to the jury. This procedure was followed in order to avoid the necessity of a new trial in the event that the trial court would be in error in its evaluation of the legal question presented. Fratta v. Grace Line, Inc., 2 Cir., 139 F.2d 743.

The defendant again raises the defense of res judicata in its motion for a directed verdict as provided by Rule 50(b) of the Federal Rules of Civil Procedure.

It is noteworthy that the divers suits involving the parties to the instant proceeding were filed in the State Court during July of 1952.

The instant suit was filed in this court on September 28, 1951, or approximately ten months prior to the dates when the actions were instituted in the State Court. Nevertheless, by reason of the accumulated backlog of litigation which crowds the docket of the United States Court in the Western District, the adjudications in the State Court were rendered a considerable period of time before the trial of this case.

I think it likewise significant that plaintiff's counsel did not participate in the litigation adjudicated in State Court.

The trial and disposition of the issues between the joint defendants in the State Court are not in dispute. However, the plaintiff in this court, Kimmel, contends the issue of liability between Kimmel and Yankee in the State Court did not decide the issue of liability between them and, therefore, the State Court judgments are not res judicata of the instant proceeding.

The question can be more simply posed as follows:

Where two tort-feasors are sued in a Pennsylvania State Court based on a cause of action arising out of an automobile accident which occurred in Pennsylvania, and judgment is entered in favor of the plaintiff against one defendant, does said judgment bar said defendant from sustaining a cause of action in a federal court against the defendant who was exonerated from liability in the State Court?

In the State Court A sues B and C; A recovers against B and C is exonerated from liability, can B sustain a cause of action against C in the federal court?

or

Are the judgments in the State Court res judicata as to the rights of the parties in this court?

The operative facts having occurred in Pennsylvania, the question is to be answered by Pennsylvania law and the Pennsylvania decisions, so far as applicable, are controlling. Hornstein v. Kramer Bros. Freight Lines, Inc., 3 Cir., 133 F.2d 143; Hassenplug v. Victor Lynn Lines, D.C., 71 F.Supp. 70.

The precise question has never been adjudicated by any appellate court in Pennsylvania, and my conclusions in this regard must necessarily be a matter of first impression.

For purpose of deciding the issue herein posed, it is incumbent upon me, therefore, to...