McCallum v. Harris

• Decision Date: 17 April 1964
• Citation: 379 S.W.2d 438
• Parties: Shelby McCALLUM, Administrator of the Estate of Virgil Harris, Appellant, v. Golene HARRIS, Administratrix of the Estate of Rhonda Faye Harris, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 438

379 S.W.2d 438

Shelby McCALLUM, Administrator of the Estate of Virgil

Harris, Appellant, v. Golene HARRIS, Administratrix of the Estate of Rhonda Faye

Harris, Appellee.

Court of Appeals of Kentucky.

April 17, 1964.

Rehearing Denied June 26, 1964.

Terry L. Hatchett, Glasgow, for appellant.

Charles Allen Williams, Paducah, Beverly M. Vincent, Brownsville, for appellee.

DAVIS, Commissioner.

Virgil Harris was killed in an automobile accident on February 10, 1959. In the same accident his infant daughter, Rhonda Faye Harris, 18 months old, lost her life. The present appeal is from a judgment of the Edmonson Circuit Court, which awarded $15,500 to the appellee, as administratrix of the estate of Rhonda Faye Harris against appellant, administrator of the estate of Virgil Harris. We shall discuss the numerous questions submitted in the course of the opinion.

Virgil Harris was a crane operator at a plant in Calvert City; he had worked his regular shift from 4:30 p. m. until 12:30 a. m. on the early morning of the accident. He drove about fifteen miles from his work to his home near Benton, where he was joined by his wife, Golene Harris, and their three small children, aged four months, eighteen months and four years. The entire family then proceeded en route to Shelbyville to visit Mrs. Harris' brother. Virgil Harris was the driver of the automobile; seated with him on the front seat were Mrs. Harris and one of the children. The other two children, including Rhonda Faye, were on the back seat.

The family journeyed without incident until about 4:30 a. m. Then, at a point about 4.2 miles south of Park City on U. S. Highway 31-W, the automobile collided head-on with a tractor-trailer outfit owned by C & D Motor Delivery Company, driven by Lloyd Dowdy. Both Virgil Harris and Rhonda Faye Harris were dead just after the impact. There is no evidence as to which survived the other. The Harris car was demolished; Mrs. Golene Harris suffered some injuries, but none of a permanent nature. The car and truck collided left front to left front. Each of the vehicles came to rest after the accident on the east side of the highway. The east side of the highway was the right side for the Harris car.

Golene Harris, mother of Rhonda Faye Harris and surviving widow of Virgil Harris, qualified as administratrix of Rhonda Faye. As administratrix she sued the administrator of Virgil Harris and C & D Motor Delivery Company, seeking damages for the wrongful death of Rhonda Faye, in the sum of $30,000. In the same complaint Golene Harris sought $2,500 from the same defendants for her own personal injuries.

The appellant, administrator of Virgil Harris, moved the trial court for dismissal of the complaint against him as to the claim for the death of Rhonda Faye. The trial court sustained the motion, and on June 26, 1961, entered an order dismissing the complaint of appellee, administratrix of Rhonda Faye Harris. The court dismissed the complaint on the ground that Rhonda Faye Harris was the unemancipated child of Virgil Harris and no cause of action existed for her death alleged to have been caused by her deceased father. The trial court's ruling followed our decision in Harralson v. Thomas, Adm'r Ky., 269 S.W.2d 276. Appellee's counsel endorsed his approval of the form of the order at the time of its entry. The dismissal order did not contain any recital that it was final. CR 54.02.

On June 9, 1961, our decision in Harlan National Bank v. Gross, Ky., 346 S.W.2d 482, became final; it overruled Harralson, supra. On November 13, 1961, appellee moved the trial court to set aside its dismissal order of June 26, 1961, in light of the decision in Harlan National Bank v. Gross, supra. The trial court sustained the motion, set aside the order dismissing the complaint of appellee, and caused the case to be set for trial. Appellant contends that the trial court had no authority to set aside the June 26th order. We do not agree.

The action was a multiple claims action within the purview of CR 54.02; the June 26th order disposed of part of the claims, but not all of them. By the express terms of CR 54.02 the trial court retained complete authority over the order until entry of judgment adjudicating all the claims.

Appellant contends that Golene Harris gave testimony absolving Virgil Harris from negligence, and is thus barred by her judicial admission. Wandling v. Wandling, Ky., 357 S.W.2d 857; Bell v. Harmon, Ky., 284 S.W.2d 812; and Tompkins v. Knut, C.C., 94 F. 956, are relied upon by appellant. It is true that in a pretrial deposition, as well as by her testimony at the trial, Golene Harris failed to detail any negligent act of Virgil Harris to which she could ascribe the accident. However, the true import of her evidence is of a negative character; that is, she simply testified as to an absence of knowledge about the crucial facts of the accident. The evidence given by Golene Harris may not be said to be 'deliberate and unequivocal and unexplained.' Bell v. Harmon, supra. Neither may it be said that Golene Harris was in a favorable position to observe accurately what occurred. Although she was seated in the front seat of the automobile, she explained that she was blinded by the lights of the oncoming truck. It is our conclusion that her evidence does not amount to a judicial admission. We note, without deciding, that there is question whether her evidence as an individual could be a judicial admission as to her representative position as administratrix.

Appellant asserts that Golene and Virgil Harris were on a joint venture, so that the negligence of Virgil, the husband, is attributable to Golene. We find no merit in this contention. In McCoy v. Carter, Ky., 323 S.W.2d 210, we pointed out that joint enterprise presupposes not only a community of interest but also equal right, express or implied, to direct and control the management of the car. There was a complete absence of any such showing here.

Appellant vigorously urges that Golene Harris was guilty of contributory negligence. This theory is advanced on the premise that she knew that her husband had labored at his regular job and then had undertaken the long automobile trip without rest or food. That appellant has misconceived the applicable rule here is shown by his reliance on New York Indemnity Co. v. Ewen, 221 Ky. 114, 298 S.W. 182. In the Ewen case there was specific evidence that the accident was caused by the reckless speed of the driver, and that the passenger knew of the driver's habit of speeding Moreover, in Ewen, we set out a proper instruction for submission of the contributory negligence issue raised by the evidence. In the case at bar there was no such issue raised, as there was not the slightest evidence reflecting anything but perfectly normal and proper driving by Virgil Harris until just the moment before the collision. See Southern Oxygen Co. v. Martin, 291 Ky. 238, 163 S.W.2d 459.

It is next contended that since Rhonda Faye Harris was under the joint custody and control of her parents, the negligence of the father must be imputed to the mother. In Hale v. Hale, 312 Ky. 867, 230 S.W.2d 610, we said that negligence of one spouse is not to be imputed to the other in such cases by reason of the marital relationship alone. Our re-examination of the principles announced in the Hale case confirms the soundness of its rationale. Here the child was not permitted to be in an abnormally dangerous place as in Wheat's Adm'r v. Gray, 309 Ky. 593, 218 S.W.2d 400, 7 A.L.R.2d 1336.

Lloyd Dowdy, of the C & D truck, testified that the Harris car veered to its left side of the highway and struck the truck at a point some 5 feet 7 inches into the truck's traffic lane. This testimony was substantially corroborated by testimony from a State trooper as to the tire marks in the road. The trooper unequivocally testified that he was able to identify the marks in the highway and traced them to the respective vehicles. Appellant relies on Union Underwear Co. v. Barnett, 285 Ky. 488, 148 S.W.2d 339, for his contention that the trooper's evidence was incompetent. We disagree. In the Barnett case there were marks in the highway, but nobody was able to relate the marks to either of the vehicles with any certainty. There the marks merely raised a possibility that the truck could have been on the wrong side of the road. In the case at bar the eyewitness evidence of Dowdy, coupled with the trooper's testimony in which he identified the marks, removes the element of speculation present in the Barnett case.

Appellant complains of the instructions given and the refusal of others offered. Since the bases for the arguments on the instructions are the same as those already mentioned, we refrain from detailed discussion of the contentions. It suffices to say that we have carefully considered the instructions given and those offered, and find that the issues were fairly and properly presented.

Appellant insists that a compromise settlement with C & D Motor Delivery Company by Golene Harris, administratrix of Rhonda Faye Harris, bars the appellee in the instant case. The settlement release reflects that the claim against C & D Motor Delivery Company was compromised for $1,000. However, the release clearly recites that it is a partial settlement only, and that the right to prosecute the claim against the present appellant is fully reserved. Under the well-recognized rule, a partial settlement with one tort-feasor does not release another tort-feasor, if the settlement is not received in full satisfaction of the claim. Louisville Gas & Electric Co. v. Beaucond, 188 Ky. 725, 224 S.W. 179; 45 Am.Jur., Release, § 36, et seq; 16A Ky. Digest, Release, k29(1) and 29(4).

It is next asserted that a compromise settlement made with C & D Motor Delivery Company by McCallum, as administrator of Virgil Harris,...