Lawrence v. Vail

• Decision Date: 28 October 1958
• Docket Number: Civ. No. 1134.
• Citation: 166 F. Supp. 777
• Parties: Paul M. LAWRENCE, Plaintiff, v. Virgil E. VAIL, Administrator of the Estate of Philip L. Wineman, Deceased, and Oliver W. Nelson, d/b/a Nelson Laboratories, Defendants.
• Court: U.S. District Court — District of South Dakota

166 F. Supp. 777

Paul M. LAWRENCE, Plaintiff, v. Virgil E. VAIL, Administrator of the Estate of Philip L. Wineman, Deceased, and Oliver W. Nelson, d/b/a Nelson Laboratories, Defendants.

Civ. No. 1134.

United States District Court D. South Dakota, S. D.

October 28, 1958.

Deming Smith (of Davenport, Evans, Hurwitz & Smith), Sioux Falls, S. D., and John J. Greer (of James & Greer), Spencer, Iowa, for plaintiff.

F. M. Smith (of Woods, Fuller, Shultz & Smith), Sioux Falls, S. D., for defendant Vail.

Gene E. Pruitt and Acie W. Matthews, Sioux Falls, S. D., for defendant Nelson.

MICKELSON, Chief Judge.

Plaintiff, Paul M. Lawrence, a citizen of the State of Iowa, brings this action against defendants Virgil E. Vail, as administrator of the estate of Philip L. Wineman, deceased, and Oliver W. Nelson, d/b/a Nelson Laboratories, citizens of the State of South Dakota, for property damages and for personal injuries sustained in a motor vehicle accident which occurred in the State of Iowa. Plaintiff was operating a Chevrolet pickup truck which collided with an automobile owned and being driven by Philip L. Wineman, a salesman for Nelson Laboratories. Wineman died as a result of injuries sustained in the collision, and the defendant Virgil E. Vail is the duly appointed, qualified and acting administrator of his estate. The plaintiff sustained serious personal injuries and damages to his pickup and brings this action against the defendants for the sum of $81,971.35 as alleged damages.

The accident occurred on April 15, 1957, at approximately 6:00 P.M., on a blacktop county highway running north and south, at a point about two and three-quarters miles south of Lake Park, Iowa. The lay was clear, visibility was excellent, the highway was dry, and the road conditions were normal. The plaintiff was driving north in a 1951 Chevrolet pickup truck at a speed of between 35 and 40 miles per hour, on the blacktop, known as Dickenson County Road C. At a point two miles south of Lake Park, Highway C intersects Iowa Highway No. 9. When the plaintiff was about one mile south of this junction, he observed the decedent's automobile approaching from the north and in the west lane of traffic. The two vehicles were then less than one mile apart. Both vehicles entered depressions in the road. When plaintiff emerged from the depression, he was approximately 300 feet south of a driveway which led to a set of farm buildings to the east of the blacktop. At that point decedent's vehicle was in plaintiff's view, some 650 feet north of this driveway. Plaintiff estimated decedent's speed at approximately 60 miles per hour. Plaintiff had traveled about 100 feet north from the depression when he noticed that decedent's vehicle was crossing into his, or the east, lane of travel. Plaintiff slowed down, braked slightly, and moved closer to the ditch on his right. When he realized that a collision was inevitable, he braked the pickup to a full stop. Decedent continued south in plaintiff's lane of travel and collided with the plaintiff's vehicle with such force that the pickup truck was driven backward 18 inches from the point of impact. Evidence established that the plaintiff had driven his vehicle as far to the right side of the road as possible without going into the ditch. The ditch along the east side of the blacktop at the scene of the accident was from 4½ feet to 5 feet deep, and the road had a very narrow shoulder that slanted downward at a 45-degree angle. There was testimony to the effect that it would be extremely dangerous for a vehicle to attempt to leave the road and turn into the ditch and that to do so would in all probability result in an upset. The accident occurred wholly in the east lane of the highway and at a point about parallel with the south edge of the farm driveway. Plaintiff did not sound his horn nor make any effort to turn his pickup to the left after observing the decedent on plaintiff's side of the road. As a result of the accident, both vehicles were rendered a complete loss. Plaintiff suffered minor cuts and bruises, and in addition, the impact drove his right femur through the hip socket, shattering the socket and causing a severe fracture dislocation of the right hip. Decedent suffered multiple injuries, including a crushed chest, which resulted in his death several hours later. Before he died and within a short time of the accident, decedent said to one Hadley Schafer, a partner of the plaintiff, "I just didn't see him." Decedent also stated to a Dr. Coble, who accompanied him to the hospital, "I was looking for something."

The defendant Vail contends that the failure of Lawrence to sound his horn when he realized that the decedent was in the wrong lane of travel constituted contributory negligence on his part which was a proximate cause of the accident. We cannot agree with this contention. Plaintiff found himself in a dangerous situation entirely without fault on his part. He testified that between the time that he first saw Wineman move into his lane of travel and the moment of impact, no more than five or six seconds elapsed. Plaintiff had a right to assume that the decedent would return to his own lane of travel until it became apparent that decedent would not do so. When that time arrived, plaintiff had but one or two seconds to act. He was too far south of the driveway to turn into it; the ditch was steep and dangerous; he was already braking toward a stop; and it is highly speculative whether he could have turned to the left side of the road in time to avoid a collision when it was first apparent that a collision was inevitable. In the case of Zeller v. Pikovsky, 66 S.D. 71, 278 N.W. 174, 175, a case of similar facts, the court said:

"Plaintiff was driving on the extreme right of the highway and was in a situation where it was impossible on account of the condition of the ditch to his right to turn any further in that direction. * * * It seems clear to us that the plaintiff had the right to assume that the defendant would control his truck in obedience to the law of the road and that his failure to comply gave rise to an emergency in which the plaintiff was required to act instantly. He was confronted with a situation of imminent danger requiring instant action and acting in an emergency not created by his own antecedent negligence was not guilty of negligence if he made such a choice as a person of ordinary prudence placed in such position might make even though he did not make the wisest choice. * * * If a duty on the part of a plaintiff on his proper side of the highway to sound his horn * * * existed, clearly it did not arise until he discovered that defendant did not intend to turn to the right. The evidence does not show that plaintiff knew in sufficient time or should have known that defendant would not control his truck in obedience to the law to permit plaintiff to take these precautions."

Counsel for the defendants have cited no Iowa cases which would contravene the statement of the South Dakota court. That Iowa applies the general principles of the so-called "emergency doctrine", see Rupp v. Kohn, 210 Iowa 969, 232 N.W. 174; Koob v. Schmolt, 241 Iowa 1294, 45 N.W.2d 216.

We find that under the evidence in this case, plaintiff was confronted with a sudden emergency not created by his own antecedent negligence, and that therefore his failure to act in any of the particulars suggested by the defendants did not constitute negligence on his part, and that the negligence of the decedent, Wineman, was the sole and proximate cause of the accident and the damages sustained by the plaintiff.

There remains the question of defendant Nelson's liability for the negligence of the decedent, Philip L. Wineman. On this question, it is the position of the plaintiff that the relationship of employer-employee, master-servant, or principal-agent existed between the defendant Nelson and the decedent, Wineman, at the time this accident occurred, and that therefore Nelson is liable for the negligence of the decedent under the doctrine of respondeat superior. The defendant Nelson, on the other hand, contends that none of such relationships existed, and that the decedent, Wineman, was, at all times material herein, acting as an independent contractor, and that therefore the defendant Nelson would not be liable for the negligence of the decedent.

As this court's jurisdiction depends upon the diversity of citizenship of the plaintiff and the defendants, and the accident occurred in the State of Iowa, the substantive law of that state would apply in determining the employment relationship of the defendants. This has been agreed to by all parties to this action. In determining the relationship which existed between the decedent, Wineman, and the defendant Nelson, we find no Iowa decisions, and none have been cited, where the fact situation was precisely the same as the facts in the instant case. However, the decisions of the Supreme Court of Iowa do make it abundantly clear as to the tests to be applied in determining such relationship.

In the landmark case of Mallinger v. Webster City Oil Co., 211 Iowa 847, 234 N.W. 254, at page 256, the court discussed the Iowa test for determining the relationship existing between an employer and his employee as follows:

"* * * the General Assembly of Iowa in the enactment of section 1421, par. 3(c), did not define the term `independent contractor' used in said act. However, this court has held that the term `independent contractor' does, despite the liberal interpretations of the act, retain its common-law meaning, and is still to be given the meaning that courts have always given the term. (case cited) This means that the tests of the common law are applicable, and none other."

It is well settled that the principal common-law test used in determining the employment relationship is the "right of control" test. War Emergency Co-op Ass'n v. Widenhouse, 4 Cir., 169 F.2d 403; ...