Merchants Motor Freight v. Downing, 15275.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: JOHNSEN, COLLET, and VAN OOSTERHOUT, Circuit
• Citation: 227 F.2d 247
• Parties: MERCHANTS MOTOR FREIGHT, Inc., Appellant, v. Glen DOWNING and Independent Truckers, Inc., Appellees.
• Docket Number: No. 15275.,15275.
• Decision Date: 22 November 1955

227 F.2d 247 (1955)

MERCHANTS MOTOR FREIGHT, Inc., Appellant,
v.
Glen DOWNING and Independent Truckers, Inc., Appellees.

No. 15275.

United States Court of Appeals Eighth Circuit.

November 22, 1955.

227 F.2d 248

Charles M. Bump, Des Moines, Iowa (Paul W. Walters, Des Moines, Iowa, was with him on the brief), for appellant.

D. J. Fairgrave, Des Moines, Iowa (John V. Synhorst, Des Moines, Iowa, was with him on the brief), for appellees.

Before JOHNSEN, COLLET, and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal from final judgment based upon jury verdict denying claim of appellant, hereinafter called plaintiff, and establishing counterclaim of appellee Downing, hereinafter called defendant, the litigation arising out of a collision of a tractor trailer combination owned by plaintiff and driven by its employee, Mangert, and a tractor, owned and driven by defendant, pulling a trailer owned by appellee Independent Truckers, Inc., on U. S. Highway No. 6 near Tiffin, Iowa, on January 8, 1953, at 1:30 A.M. Jurisdiction based upon diversity of citizenship has been established.

Highway No. 6 at the place of collision is a paved two-lane highway with a black line marking its center. The paving is 18 feet wide, including a sloping curb 11 inches wide on each side of the highway, leaving 16 feet 2 inches of paving measured from the inside edge of the curbs, or a distance from the inside edge of each curb to the center line of 8 feet 1 inch. On each side of the pavement is a dirt shoulder approximately 10 feet wide. Each tractor and trailer combination was just under 8 feet wide and about 45 feet long and was carrying a load. Plaintiff's vehicle was proceeding west uphill. Defendant's vehicle was traveling east downhill. There was some mist and the road was beginning to get slippery.

Plaintiff claims the collision was proximately caused by defendant's failure to yield one-half the traveled highway, to keep a proper lookout, to have his vehicle under control, and to keep to the right when approaching a curve. Freedom from contributory negligence is asserted. Defendant in his counterclaim relies upon the same specifications of negligence

227 F.2d 249

and asserts freedom from contributory negligence. Neither party asserts the other was traveling at an excessive speed

Plaintiff relies principally on the testimony of its driver, Mangert, to the effect that when the vehicles were about 500 feet apart said driver observed defendant's truck running on the black center line with the vehicle overhanging said line. Mangert states that he tried to turn to the right to get his vehicle over the curb but failed because it was too icy. When the defendant continued to encroach on plaintiff's side of the road and got very close — about two truck-lengths away — Mangert turned more sharply to the right and got the front wheels over the curb. The trailer jackknifed, swinging to the left, and in so doing crossed on to defendant's side of the highway. After the collision plaintiff's trailer was still somewhat over the center line. The collision occurred between the left front of defendant's cab and the left rear corner of plaintiff's trailer. In some respects Mangert's testimony is corroborated by the driver of a truck following him.

Defendant denied that his truck was to the left of the center line. His version of the accident was that he was following another Merchants truck, that after plaintiff's truck had passed said truck it "seemed to sway over to the shoulder of the road, back into the center of the road, and over onto my side, and then to cut way over to the left side, off to my left, which was the right side of the road for him, and up over the shoulder into a jack-knife position. The trailer kept coming toward me as I was going slowly down this hill. Now as this happened — I will tell you the truth — I thought he was going to turn around and get out of my way before I actually did come upon him, but because he went back a second time and didn't go into the ditch and jack-knifed like, I thought he was — the first attempt that his truck seemed to be out of control. He came closer toward me and when I saw that, I tried to get out of his way. I pulled off to the right and I got my right wheel off into the grass shoulder of the highway, but my left wheel wouldn't climb up the beveled shoulder. As I did that I saw his trailer start to whip towards me and then just before it happened, I ducked down in the cab and laid down out of the way, and the glass and everything from the windshield went all over me."

The evidence will be further developed in discussing the errors asserted by the plaintiff, which we now proceed to consider.

I. Over plaintiff's objection the defendant was allowed to testify that he had received a $7,500 offer from an undisclosed source for his tractor shortly before the collision. The court in its instructions also mentioned the offer as a factor for the jury to consider in determining the reasonable market value of defendant's tractor before the collision. Plaintiff made proper exception to this instruction. The evidence discloses that defendant's vehicle could be restored to its pre-accident condition by repairs. Under such circumstances the applicable measure of damages is the reasonable cost of repairs plus the reasonable value of the use of the vehicle while being repaired with ordinary diligence, not exceeding the value of the vehicle before injury. Langham v. Chicago, R. I. & P. Ry. Co., 201 Iowa 897, 901, 208 N.W. 356, 358; Kohl v. Arp, 236 Iowa 31, 33, 17 N.W.2d 824, 826, 169 A. L.R. 1067. It was stipulated that if called proper witnesses would establish the cost of repairs and damage for loss of use of the tractor at $6,557.18. Plaintiff reserved the right to assert its contention that the cost of repairs and loss of use exceeded the value of the defendant's tractor before collision. The defendant as a witness fixed the reasonable market value of his tractor immediately prior to the collision at $9,000. Under Iowa law the owner of personal property is qualified and competent to testify as to its value. Kohl v. Arp, supra; Slabaugh

227 F.2d 250

v. Eldon Miller, Inc., 244 Iowa 29, 55 N. W.2d 528. Counsel has not cited any Iowa authority, nor have we found any, directly on the issue whether the owner of property is permitted to testify as to offers he has received. Generally it appears that such evidence is not admissible. Sharp v. United States, 191 U.S. 341, 348, 24 S.Ct. 114, 48 L.Ed. 211; 31 C.J.S., Evidence, § 183, p. 898; 20 Am. Jur., Evidence, § 375, p. 341. The jury awarded the defendant $3,200, slightly less than one-half of the damage stipulated, subject to proof of the value of the tractor before the accident. Since there was competent evidence that the pre-accident value of the tractor was $9,000, we can not see where any possible prejudice resulted from admitting proof of the $7,500 offer and the reference thereto in the instructions

II. Defendant's deposition had been taken before trial. He was examined as a witness at the trial. Some inconsistencies appeared between his testimony at the trial and that disclosed by the deposition. Plaintiff's counsel interrogated defendant as to such inconsistencies, and secured his admission at least in most instances as to the testimony that he had given by his deposition. The plaintiff then sought to introduce the deposition as a whole, and later, certain portions thereof. The court sustained the defendant's objection to such offer, stating:

"I will not permit a discovery deposition to be offered and received in evidence when we have the witness on the stand. If you have any particular portion that you want to offer you may interrogate the witness about it, but you have the witness here and you may elicit from the witness anything that you have tried to obtain in the deposition, but I will not admit the deposition nor questions and answers from it other than for impeachment purposes."

Rule 26(d) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides:

"The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose."

This rule is broad and has been liberally interpreted. Pfotzer v. Aqua Systems, 2 Cir., 162 F.2d 779; Buder v. New York Trust Co., 2 Cir., 107 F.2d 705; 4 Moore's Federal Practice, p. 1187.

Under the rule hereinabove quoted the plaintiff was entitled to introduce the defendant's deposition into evidence, subject to the court's right to exclude such parts thereof as might be unnecessarily repetitious in relation to the witness' testimony on the stand. There is considerable doubt whether the failure to receive this evidence resulted in any prejudicial error in this case, since the substantial discrepancies were admitted by the defendant when he appeared as a witness. However, since this case must be reversed for other reasons we need not decide whether this error alone would warrant a reversal.

III. Plaintiff contends the court erred in failing to sustain its motion for a directed verdict...