Moretz v. General Electric Company
| Decision Date | 23 February 1959 |
| Docket Number | Civ. A. No. 892. |
| Citation | 170 F. Supp. 698 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | Kelly C. MORETZ, a citizen and resident of Kingsport, Sullivan County, Tennessee, Plaintiff, v. GENERAL ELECTRIC COMPANY, a corporation organized and existing under the laws of the State of New York, and doing business in Roanoke County, Virginia, Defendant (MASON & DIXON LINES, INCORPORATED, a Corporation organized and existing under the laws of the State of Tennessee, and doing business in the State of Virginia, Third-party Defendant). |
A. Linwood Holton, Jr., Roanoke, Va., William S. Todd, Kingsport, Tenn., Dodson & Dodson, Kingsport, Tenn., for plaintiff.
Fred B. Gentry, Roanoke, Va., for defendant and third-party plaintiff.
John H. Thornton, Jr., Roanoke, Va., for third-party defendants.
This is a tort action by Kelly C. Moretz, a citizen of Tennessee, plaintiff, against the General Electric Company, a New York corporation, defendant, hereinafter referred to as for damages sustained as a result of the defendant's alleged negligence in improperly loading a trailer, hauled by the plaintiff in his capacity of "over-the-road" driver for the Mason & Dixon Lines, Inc., a Tennessee corporation, an interstate common carrier, hereinafter referred to as "Mason-Dixon." Over plaintiff's objection, defendant G. E. was permitted to implead the plaintiff's employer, Mason-Dixon, and seeks to recover from this third-party defendant, as contribution or indemnity, any amount for which G. E. may be liable to the plaintiff.
The issues of negligence as to the plaintiff Moretz, the defendant G. E., and the third-party defendant, Mason-Dixon, were tried to a jury. The question as to liability as between the plaintiff Moretz and the defendant G. E. was submitted to the jury on all the facts in the case and the Court's charge. The jury returned a verdict for $35,000 against the defendant G. E.
The jury was instructed that it could not find a verdict for Moretz against his employer, Mason-Dixon, as he had not sued Mason-Dixon and that he could not sue his employer because it was protected from suit by its employees for injuries sustained in the course of their employment under the provisions of the Tennessee Workmen's Compensation Law.
After the jury returned its verdict for the plaintiff against G. E., the Court submitted to the jury the question of negligence as between the defendant G. E. and the third-party defendant, Mason-Dixon, and the jury found as follows:
"We, the jury, find that the Mason and Dixon Lines, Incorporated, was guilty of negligence which proximately contributed to the accident and resulting injury of Kelly C. Moretz."
The case is now before the Court as follows:
The facts are:
There were certain statutes and tariffs governing the duties and responsibilities of shippers and carriers of goods in interstate commerce. The I. C. C. promulgated certain regulations providing that trucks must be safely loaded, and that drivers must inspect their trucks before driving them on the highway. The American Trucking Association, Inc. promulgated certain tariffs applicable to all agreements entered into between carriers and shippers to the effect, as far as here pertinent, that when a shipper loads a trailer with objects of greater dimensions than those specified therein, which was the case here, the shipper is responsible for securely loading the cargo in the trailer. These statutes and tariffs are important insofar as they pertain to the legal relationship and responsibilities obtaining between Mason-Dixon and G. E.
Mason-Dixon had placed an empty trailer at the G. E. loading dock. Later, F. C. Brown, a `city driver' for Mason-Dixon, went to the loading dock at the G. E. plant to pick up the loaded trailer and bring it to Mason-Dixon's city terminal in Roanoke, and, it not being sealed, looked in the rear doors and noted that there was an aisle approximately 18" wide in the center of the trailer with heavy items of cargo on both sides. He told the G. E. loading dock personnel about this, and asked that the load be braced or chocked in place. They refused to brace it, saying that it was unnecessary to do so, and that if the cargo did shift, it would not be damaged. Brown then hauled the trailer to the Mason-Dixon city terminal, and told the Mason-Dixon dispatchers that the load needed to be braced, and they promised to attend to it. The trailer was not sealed when Brown delivered it to the city terminal, and the manner in which it was loaded could easily have been inspected by Mason-Dixon before sealing it. The time was approximately 3:30 p. m.
At approximately 4:00 p. m., the plaintiff Moretz arrived at the terminal with another trailer load originating in Kingsport, Tennessee. He was then instructed by the dispatcher to haul the trailer loaded with G. E. cargo back to Kingsport, Tennessee. Moretz made the required routine inspection of the tractor-trailer. He could not check the manner in which the cargo was loaded, as the trailer had then been sealed.
Near Salem, Virginia, he came to an intersection with a sharp left turn, and as he negotiated this curve at a speed of approximately 15 m. p. h., he heard a thud inside the body of the trailer. His front wheels lifted off the ground, and the truck turned over on its side.
The plaintiff received certain injuries, and it is for these injuries that the present action was brought. The medical testimony showed that although the plaintiff had suffered from an anomaly of the spine since birth, he had suffered a severe spondylolisthesis as a result of the accident which incapacitated him for some time, and may prevent him from ever driving a truck again. Moretz's doctor is of the opinion that he will not be able to return to his occupation as a truck driver without undergoing a spinal operation.
The plaintiff's earnings for the two years preceding the accident averaged about $6,000 per year. He is a man of approximately 40 years, who knows no trade other than truck driving. He has had to undergo considerable pain and suffering, and has been unable to work since his accident.
Jurisdiction is based upon diversity of citizenship between the plaintiff and defendant, and upon the amount in controversy.
The motion filed by the defendant G. E. will be considered first, as it pertains to the issues tried between the plaintiff Moretz and the defendant G. E.; and second, as it pertains to the issues tried between G. E. as third-party plaintiff and Mason-Dixon as third-party defendant for contribution or indemnity. Mason-Dixon's motion to dismiss will then be considered.
The motion as to Moretz and G. E.
Substantially, the grounds assigned by G. E. in support of its motion relative to the issues tried to the jury are as follows: that Moretz was guilty of contributory negligence as a matter of law, that the verdict was excessive, that there was no evidence upon which to base a verdict, and that the Court erred in its ruling on evidence unspecified in the motion and in refusing to give instructions unspecified in the motion.
The issue of contributory negligence was one of fact, and was tried to the jury. The jury's verdict absolved the plaintiff of any negligence which proximately contributed to the accident. There was sufficient evidence on which to base such finding and in accordance with the verdict of the jury, the Court finds that the plaintiff was guilty of no negligence which would bar a recovery.
The measure of damages is for the jury, and its award will not be set aside unless so great or so little as to shock the conscience. The plaintiff is a man in the prime of life, and up to the date of the accident had been earning from five to seven thousand dollars per year. Since that time, he has been unable to work at his regular occupation of driving a truck, has undergone considerable medical treatment, and will remain unable to work at his trade regularly until after serious surgery has been performed upon his spine. He has suffered physical pain in an extent known only to him; in fixing a reasonable amount of compensation in these circumstances, the jury had considerable discretion. The amount settled upon by the jury as adequate was not an abuse of this discretion. See Chappell v. White, 1946, 184 Va. 810, 819, 36 S.E.2d 524, 528.
Such objections as were timely made to the Court's ruling on the admissibility of evidence and instruction to the jury were considered and disposed of when interposed; the defendant has failed to state in its motion in what respect the Court erred in the rulings thereon. The Court adheres to its original rulings. In view of the verdict of the jury, the evidence presented must be considered in the manner most favorable to the plaintiff. Viewing the evidence in this light, the Court will not disturb the verdict of the jury, and judgment will be entered in favor of the plaintiff Moretz against the defendant G. E. in the sum of $35,000.00, with interest at 6% per annum from this date.
Motion of G. E. as it pertains to Mason-Dixon.
G. E. seeks contribution or indemnity from Mason-Dixon on three theories:
(1) that Mason-Dixon was guilty of such negligence as would constitute an intervening efficient cause and thus insulate G. E. from the liability resulting from its own negligence;
(2) that Mason-Dixon's failure to properly secure the cargo after being put on notice that it was in need of being braced, made Mason-Dixon a joint tort-feasor with G. E., and thus liable to G. E. for contribution; and
(3) that Mason-Dixon owed a contractual duty...
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