McRoberts v. Gorham
| Decision Date | 29 July 1971 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Noel McROBERTS et al., Plaintiffs and Appellants, v. Ray Allen GORHAM et al., Defendants and Respondents. Civ. 10469. |
This is an appeal from a judgment of dismissal for lack of prosecution in failing to bring the action to trial within five years after it was commenced. (Code Civ.Proc. § 583.)
This lawsuit arose out of a vehicle collision which occurred on November 20, 1963, on U.S. Highway No. 66, approximately four miles west of Essex Road in San Bernardino County, in which the plaintiff Noel McRoberts sustained personal injuries and his wife and mother-in-law were killed. The action was initiated by the plaintiff Noel McRoberts to recover damages for the injuries he sustained in the collision and to recover damages for the wrongful death of his wife. He was joined in the action by the heirs of the mother- in-law, who sought damages for her wrongful death.
Named as defendants were Roy Allen Gorham, Aaron Bryant, Elton Eugene Kent and Agriculture Transportation Association of Texas (ATA).
The point where the accident occurred is a two-lane highway running in a generally easterly-westerly direction (one lane in each direction). Plaintiff Noel McRoberts was driving a Ford in an easterly direction. The collision occurred when the Ford was struck head-on by a Mercury driven by the defendant Gorham in a westerly direction. Plaintiffs contend that Gorham's Mercury was in the eastbound lane when it struck the McRoberts' Ford. Just prior to the collision, a third car, a 1959 Dodge driven by defendant Aaron Bryant, and Airman in the U.S. Air Force, attempted to pass a fourth vehicle, an eastbound tractor and trailer, being driven by the defendant Elton E. Kent, an employee of the defendant ATA. When Bryant attempted to pass the truck-trailer and plaintiff's Ford, he encountered Gorham's Mercury coming in the opposite direction. Bryant attempted to avoid a head-on collision with Gorham's Mercury by proceeding to the north shoulder of the highway, but had to return to the westbound lane because the shoulder narrowed at a culvert. Gorham, westbound, apparently entered the eastbound lane to avoid Bryant. Bryant, drinking and traveling between 85--100 m.p.h., fled the scene and was later apprehended in Needles.
Two lawsuits were filed by McRoberts and the heirs of his wife's mother: On July 9, 1964, plaintiffs filed the San Bernardino Superior Court action. On June 17, 1965, plaintiffs also filed a complaint in the U.S. District Court for the Central District of California (Los Angeles) against the United States of America under the provisions of the Federal Tort Claims Act (28 U.S.C. § 1346) on the theory that Bryant was on military duty and acting in the course and scope of his employment with the government at the time of the collision.
Bryant did not appear in the San Bernardino action although he was a party defendant. He apparently was granted an open extension of time in which to plead. His deposition was taken in New Jersey in June 1965. The remaining defendants in the San Bernardino action, Gorham, Kent and ATA all appeared in the San Bernardino case. Extensive discovery ensued, including depositions of the plaintiffs and defendants. Additionally, the deposition of Bryant in the federal case was taken in April 1966.
In March 1967 a judgment in excess of $69,000 was entered in plaintiffs' favor in the federal action against the United States. The government appealed.
Between 1966--1968, the plaintiffs made some effort to proceed to trial in the state suit. Depositions were taken. The case was pretried. However, when the cause was set for trial, plaintiffs requested a continuance and, on at least one occasion, the defendant Gorham opposed going to trial and was granted a five-month continuance. At the same time, defense counsel moved to dismiss the action on technical grounds and also moved for summary judgment or nonsuit on the basis that plaintiffs, in filing the federal action, had split their cause of action and made an election of remedies.
In March 1969 the U.S. Court of Appeals reversed the judgment and dismissed the action against the government, 409 F.2d 195. A petition for rehearing was denied. Certiorari was likewise denied by the U.S. Supreme Court in August 1969, 396 U.S. 1014, 90 S.Ct. 551, 24 L.Ed.2d 505.
In September 1969 the superior court dismissed the state suit.
Plaintiffs urge that the judgment of dismissal was improperly granted on the basis that it would have been 'impracticable and futile' for them to proceed to trial with...
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