MacCurdy v. United States
| Decision Date | 12 July 1956 |
| Docket Number | Civ. A. No. 719,736. |
| Citation | 143 F. Supp. 60 |
| Parties | David J. MacCURDY, Plaintiff, v. UNITED STATES of America, Defendant. Horace Terry MOCK, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Florida |
J. B. Hodges, Lake City, Fla., for plaintiff David J. MacCurdy.
David H. Levin, Pensacola, Fla., for plaintiff Horace Terry Mock.
Hayford O. Enwall, Asst. U. S. Atty., Gainesville, Fla., for defendant, United States.
DE VANE, Chief Judge.
These suits were brought by plaintiffs against the United States under the Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671-2680, to recover for personal and property damages resulting from a collision between an automobile owned by plaintiff David J. MacCurdy and driven by plaintiff Horace Terry Mock and a Government automobile operated by Airman Third Class Charlie A. Howell, stationed at Eglin Air Force Base and assigned to the 3201st Motor Vehicle Squadron. As the two cases arose out of the same automobile accident, they were consolidated for trial.
The two complaints allege that the negligence of Airman Howell in the operation of the Government automobile was the sole proximate cause of the accident. The Government answer in each case denies the negligence of Airman Howell. In the Mock case the Government also pleads contributory negligence and in the MacCurdy case claims that if the Government agent was guilty of negligence, MacCurdy can not recover on the ground that Mock was driving MacCurdy's automobile at MacCurdy's direction, and that any contributory negligence of Mock is also applicable to MacCurdy. The complicated record made in the cases by the parties makes the cases particularly difficult to briefly summarize.
Plaintiff MacCurdy, assigned to Headquarters, 3625th Maintenance and Supply Group, 4317 IC, Air Force Service Command, Tyndall Air Force Base, resided with his wife and two minor children at Route 2, Box 1061, Parker Florida. Sometime prior to October 8, 1955, MacCurdy had received orders relieving him from said assignment and ordered him to proceed to Parks Air Force Base, California, and thence to Japan for a permanent change of station. MacCurdy was the registered owner of a 1955 Chevrolet Sedan. On Saturday morning, October 8, 1955, MacCurdy departed his station at Tyndall Air Force Base for California pursuant to his movement orders, his plan being to proceed to Mobile, Alabama, by automobile and thence to California by train. He and his wife had arranged with plaintiff Mock to accompany them in MacCurdy's automobile to Mobile and to also drive Mrs. MacCurdy back from Mobile to Parker, Florida. The party left for Mobile shortly after 7:30 A.M., MacCurdy driving the automobile. On the outskirts of Mobile Mock took over the driving and took the party to his home, where they had coffee and sandwiches and where they remained until the time arrived to take MacCurdy to the train. After proceeding to the railroad station and bidding farewell to MacCurdy, Mock driving, with Mrs. MacCurdy, started back to Parker at about 4:00 P. M. Testimony shows they stopped at a service station somewhere between Mobile and Pensacola for gas. After crossing the long Pensacola Bay Bridge, they stopped and parked at a Pure Oil Station at Gulf Breeze, which is located about one mile east of the Pensacola Bay Bridge. It was then about 6:30 P. M. Wilson, the attendant, approached them and inquired if he could be of any service to them; whereupon, plaintiff Mock thanked him and told him that they had merely stopped to look at the automobile to see if they scratched it on the Bay Bridge while crossing same. Wilson testified he noticed, after they called it to his attention, the long scratch that had been made on the right front and rear fenders of the automobile. Wilson testified further that both Mock and Mrs. MacCurdy clearly showed evidence that they had been drinking and that after returning from their respective rest rooms, they together sat in the front seat of the automobile and each consumed a can of beer. Wilson testified that his station sold no beer and that neither Mock or Mrs. MacCurdy went to any other place while they were at his station to purchase same. When they had consumed the beer, they left the station, Mock driving. About thirteen miles east of this point on U. S. Highway 98 the accident involved in these cases occurred. Mrs. MacCurdy was killed as a result of the accident and Mock was severely injured. Mock testified to a complete lapse of memory from a time just prior to reaching the Pensacola Bay Bridge until he regained consciousness hours later in the Naval Hospital in Pensacola.
The only eyewitness offered by plaintiffs with reference to the accident was William L. Wisenhant and his testimony is somewhat confusing as will immediately appear from a detail thereof. He testified that he was traveling east on U. S. Highway 98 at a speed not greater than fifty miles per hour, observing strictly the night time law, Fla.St. § 317.22(2) (c), F.S.A. with reference to speed on the public highway in Florida at night. He testified that another was following him and that the Government car driven by Howell was following that car. When they reached a long, clear, straight piece of highway, both cars attempted to pass him; that the first car succeeded in doing so, but that when the Government automobile came up alongside his automobile, he realized there was going to be an accident, slowed down and drove his automobile off the highway; that the Government automobile attempted to get back into its lane of travel, but failed to do so completely and that plaintiff MacCurdy's automobile operated by plaintiff Mock came in collision with the rear of the Government automobile, which resulted in the accident. He testified Mock was traveling at a speed of sixty miles an hour "maybe more, maybe less" at the time of the accident.
Before passing to other evidence bearing upon the accident offered by the...
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