Metropolitan Life Ins. Co. v. Talbot, 14343.

• Decision Date: 30 June 1953
• Docket Number: No. 14343.,14343.
• Citation: 205 F.2d 529
• Parties: METROPOLITAN LIFE INS. CO. v. TALBOT.
• Court: U.S. Court of Appeals — Fifth Circuit

205 F.2d 529 (1953)

METROPOLITAN LIFE INS. CO. v. TALBOT.

No. 14343.

United States Court of Appeals Fifth Circuit.

June 30, 1953.

T. Baldwin Martin, Martin, Snow & Grant and Harris, Russell, Weaver & Watkins, all of Macon, Ga., for appellant.

S. Gus Jones, Douglas C. McKenney and Oscar L. Long, all of Macon, Ga., for appellee.

Before HUTCHESON, Chief Judge, and RUSSELL and STRUM, Circuit Judges.

STRUM, Circuit Judge.

Defendant below, Metropolitan Life Insurance Company, appeals from a judgment awarding damages against it for the wrongful death of plaintiff's husband, Roger Talbot, due to the negligent operation of an automobile by defendant's employee while acting in the scope of his employment.

About mid-day on November 6, 1951, plaintiff's husband was driving his automobile easterly along a paved highway, 18 feet wide, on the outskirts of Macon, Georgia. The terrain in the vicinity is somewhat "rolling." Defendant's employee, accompanied by a fellow-employee, was driving westerly along the same road. The cars collided about 200 feet east of the crest of a small hill over which plaintiff's husband had just driven, and about 104 feet west of a point where defendant's employee had temporarily parked his car off the pavement, on his own left (south) side of the highway, while he collected an insurance premium from the occupant of a house in front of which he parked. Having completed his mission in the house, defendant's employee started his car and had proceeded westerly about 104 feet when the collision occurred, resulting in the death of plaintiff's husband.

Thus far, there is little conflict in the evidence. On other details, however, there is much conflict. Plaintiff contends that her husband was sober at the time, driving at a moderate speed on his own right (south) side of the highway, and that the collision occurred about the center of the highway, while defendant's employee was "angling" his car back across the highway in an effort to regain his own right (north) side, but before he had done so. There is credible evidence to support that view.

On the other hand, defendant contends, and produces credible supporting evidence, that plaintiff's husband had been drinking intoxicants on the morning of the collision, a bottle containing whiskey, and an empty coca cola bottle, being found on the front seat of his car after the collision; that he came over the crest of the small hill about 200 feet west of the collision point on his own left (north) side of the highway, at excessive speed, estimated by one witness at 75 to 80 miles per hour; that, meanwhile, defendant's employee had completely regained his own right (north) side of the highway, and that the collision occurred wholly on that side. Both of defendant's employees testified definitely that their car had regained their own right side of the highway before the collision.

Photographs of both cars indicate that the collision was almost head-on. The only eye witness to the actual impact, other than the principals, testified in support of plaintiff's theory that the collision occurred near the center of the highway while defendant's employee was angling across from the left, but before he reached the right (north) side of the highway. On the other hand, there were skid marks about 10 feet long, said to have been made by plaintiff's husband's car on the north side of the highway, the outer one being within about thirty inches of the north edge of the paving. There was broken glass and other litter, apparently caused by the collision, on the north side of the paving and on the north shoulder. Plaintiff's husband had worked from 7 p. m. to 3:40 a. m. the night before as fireman on a railroad yard engine, and had not yet been home for sleep when the collision occurred.

On the issue of intoxication, the evidence is also in conflict. There is evidence that deceased had one drink several hours before the collision, and that he and a companion acted like they had been drinking about 7:45 a. m. Another witness testified that he smelled the odor of alcohol while talking to the deceased and his companion shortly before 8:00 a. m. of the day of the collision. On the other hand, a deputy sheriff who arrived at the scene of the collision a few minutes after it occurred, and who helped to remove plaintiff's husband from his car, also the ambulance attendant who picked up plaintiff's husband at the scene of the collision, and an interne at a Macon hospital, who examined the body upon its arrival at the hospital, all of whom came in close proximity to deceased's head and body, testified that they smelled no whiskey, nor saw any evidence of intoxication. The companion who was with deceased all morning, and until a few minutes before the collision, testified that the deceased was sober, although he had one drink several hours before the collision. Plaintiff, deceased's wife, testified that she talked to her husband on the phone between 10:15 and 11:15 a. m., and he seemed to be sober at that time.

With the evidence thus in conflict, and with credible evidence supporting both views, a typical jury question is presented upon the question of intoxication, negligence, and contributory negligence. The jury resolved the issues in favor of plaintiff below, and the verdict has been approved by the district judge. There is ample evidence to support the verdict, though the conflicts are striking, and there is evidence from which contributory negligence on the part of plaintiff's husband could be readily inferred. The jury apparently took this evidence into account in assessing damages, to which we shall refer hereafter.

Appellant asserts that the trial judge committed prejudicial error in charging the jury, pursuant to section 68-303(a) of the Georgia Code, that "All vehicles not in motion shall be placed with their right sides as near the right side of the highway as practical * * *." Appellant contends...