Linkenhoger v. Owens

• Decision Date: 03 May 1950
• Docket Number: No. 12918.,12918.
• Citation: 181 F.2d 97
• Parties: LINKENHOGER et al. v. OWENS et al. LINKENHOGER et al. v. SANDERS et al.
• Court: U.S. Court of Appeals — Fifth Circuit

181 F.2d 97 (1950)

LINKENHOGER et al. v. OWENS et al. LINKENHOGER et al. v. SANDERS et al.

No. 12918.

United States Court of Appeals Fifth Circuit.

April 5, 1950.

Rehearing Denied May 3, 1950.

Charles B. Emery, Shreveport, La., for appellants.

Benjamin C. King, Shreveport, La., Ashley J. Gold, Shreveport, La., Charles D. Egan, Shreveport, La., for appellees.

Before WALLER, BORAH and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

Complainants, Mary Lee Owens and Jerry Sanders, were passengers upon a public bus and were injured when the bus was struck from the rear by a tank truck owned and operated by Edgar Linkenhoger. They instituted suits against New Amsterdam Casualty Company, insurer of the bus, and Edgar Linkenhoger and American Fidelity and Casualty Company, Inc., his insurer. The insurer of the bus will be hereinafter referred to as Amsterdam and the parties concerned with the truck as Linkenhoger. The causes were consolidated for the purpose of trial, and upon the trial the jury found in favor of the complainants and against Linkenhoger, discharging Amsterdam from all liability. Linkenhoger assigns as error the action of the Court denying his motion for judgment notwithstanding the verdict, or in the alternative, for indemnity against the bus company, or in further alternative, for contribution, or further for the grant of a new trial, and the giving by the trial Court of charges to the jury requested by Amsterdam and the failure to give charges requested by the appellant Linkenhoger as to issues between him and Amsterdam. So far as the complainants are concerned, the only error assigned here is that the verdict is excessive. Determination of questions presented by the appeal depend in part for solution upon the posture of the case presented by the pleadings, but there is no reason for a full recital of the long and detailed allegations of the complaints, the answers, or the cross claims interposed by Linkenhoger against Amsterdam. Complainants alleged that Amsterdam's insured was negligent in stopping the bus with some three feet of the rear end extending out upon the concrete pavement and that Linkenhoger was jointly and concurrently negligent in the operation of his truck whereby it was permitted to run into the bus projecting upon the highway. Linkenhoger by answer denied all allegations of negligence against him, admitted the negligence charged against Amsterdam, and by way of further answer detailed his contention as to the manner in which the collision occurred and of the negligence on the part of the operator of the bus by which it was stopped with its left rear end projecting upon the highway, and which because of the color of the bus and the condition of the highway and traffic, as detailed, created an optical illusion that the entire highway was unobstructed, and that this negligence was the sole proximate cause of the collision. Expressly assuming the position of complainants in cross claim, naming Amsterdam as defendant in cross claim, and adopting the allegations of negligence in his answer, Linkenhoger sought judgment against Amsterdam for whatever amount the original complainants might recover against him, and in the alternative, in the event his driver should be found guilty of negligence proximately contributing to the collision, that he have judgment over against Amsterdam for contribution of one-half of any amount which might be awarded the original complainants. Amsterdam by a pleading entitled answer and answer to cross claim, denied all allegations of negligence against it, and admitted that the collision was caused by the negligence of Linkenhoger. In the same pleading, after answering the numerous articles of the complaints and cross claims, plead its contentions as to the facts, and alleged the collision was caused solely by the negligence of the truck driver. The case thus involves the claims and rights of the original complainants as against two defendants as joint tortfeasors, the defenses of these defendants against the complainants, and their rights as between themselves in attempting to escape liability to the complainants, and further, the right of the cross complaining defendant against his codefendant, but with which the original complainants are not concerned.

The original complainants made no motion for a new trial nor have they prosecuted an appeal, and so far as they are concerned, the verdict and judgment in their favor against Linkenhoger has become final. Linkenhoger has appealed, naming the original complainants and Amsterdam as appellees. Amsterdam moves, in which complainants join, to dismiss the appeal for the reasons, as contended, that since a judgment in solido was sought against the defendants as joint tortfeasors, and the judgment relieved one from liability, it cannot be questioned on appeal taken by the defendant cast in the judgment; further, that it is only where the joint tortfeasors are cast in solido that there is any right of contribution; and further, that there is no right of indemnity because the case is not one where the defendant cast was only technically or constructively at fault.

We are of the opinion that while, for reasons hereinafter to be stated, many of the assignments of error asserted by Linkenhoger against Amsterdam may not now be urged by Linkenhoger, his appeal nevertheless presents matters, even if not meritorious, for determination. We refer particularly to the contention that the evidence shows as a matter of law that the negligence of Amsterdam was the sole proximate cause of the collision, and that the verdict is excessive. We therefore overrule the motion to dismiss.

This appeal presents questions involving the application of the Federal Rules of Civil Procedure, 28 U.S.C.A., and their proper adjustment with the substantive law of the State of Louisiana in asserted causes of action dependent for validity upon the substantive law of that State. The Federal Court has jurisdiction only because of diversity of citizenship and the amount in controversy. It presents another aspect of the sometimes difficult problem of determining the shadowy dividing line between what is procedural rule and what is substantive law. Regardless of other distinctions, or grounds of solution in general, we may safely premise that to the extent that a Federal procedural rule is employed to afford a means to secure a right not permitted by the substantive law of the State in which the Federal Court sits, and to achieve a final adjudication of liability not authorized by the substantive law of the State of the forum, to that extent it represents an enlarged declaration and enforcement of substantive law. The command of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, is that the ultimate results reached in litigation in the Federal Courts predicated upon causes of action arising from the State law, must be the same as if the litigation had been conducted in the State courts.¹ While the Federal Courts should properly employ its own rules of procedure to secure the just, efficient and prompt determination of all claims inherent in any litigation before it, nevertheless the ultimate results reached must be such as accord with the substantive jurisprudence of the State of the forum. Thus, if there be no directly applicable State authority, the Court must ascertain for itself what would be the declaration of the State law by the State Courts in such a situation as confronts it.²

We conclude that under the facts of this case and the law applicable thereto, Linkenhoger has no standing to urge any of what might be termed substantial questions of error favoring his codefendant; that those proper for consideration are not meritorious, and that therefore no ground authorizing reversal of the judgment appealed from is presented.

The Federal procedural rule relied upon by Linkenhoger as the fundamental basis for the assertion of his rights is Rule 13 (g).³ However, the provisions of this rule must be applied so as to do no violence to the substantive law of Louisiana. While the question is not entirely free from doubt, we are of the opinion that Linkenhoger has now no valid claim against Amsterdam, either that it is liable to him for all or part of the claims asserted against him by the original complainants. No authority directly in point has been presented or discovered. We must therefore consider the substantive Louisiana jurisprudence as providing and controlling the respective rights of complainants, the defendants proceeded against for a judgment in solido, and the rights of these defendants as among themselves. One of our brothers of the United States District Court, Judge Porterie, has had occasion to express his opinion in ruling upon some aspects of the questions involved in Gray v. Hartford Accident & Indemnity Co., D.C., 31 F.Supp. 299; Gray v. Hartford Accident & Indemnity Co., D. C., 32 F.Supp. 335; Gray v. Hartford Accident & Indemnity Co., D.C., 36 F.Supp. 780, and in Shannon v. Massachusetts Bonding & Ins. Co., D.C., 62 F.Supp. 532. These cases involve the right of the original defendants as third party plaintiffs to bring in third party defendants under Rule 14 of the Federal Rules of Civil Procedure, but the rulings there made, the principles of which Linkenhoger relies upon in support of his contentions here, do not receive our approval. Appellant himself concedes that if the action was pending in the State court of Louisiana he could not assert his rights, but claims that this is because of Louisiana procedural rules rather than its substantive law. We do not agree.

We find it clearly established by the rulings of the Louisiana Courts, in holdings in some instances by analogy, and in others directly, that there is possessed by the plaintiff seeking a recovery for injuries sustained as the result of the joint and concurrent negligence of defendants who have been guilty of active...