Moss v. Associated Transport, Inc.

• Decision Date: 06 April 1965
• Docket Number: No. 15634.,15634.
• Citation: 344 F.2d 23
• Parties: Willis Johnson MOSS, Plaintiff-Appellant, v. ASSOCIATED TRANSPORT, INC., Defendant-Appellee, v. C. L. YOUNG, Howard Hogsed, Hiawassee Feed Store, Inc., and Young's Egg Service, Inc., Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

344 F.2d 23 (1965)

Willis Johnson MOSS, Plaintiff-Appellant, v. ASSOCIATED TRANSPORT, INC., Defendant-Appellee, v. C. L. YOUNG, Howard Hogsed, Hiawassee Feed Store, Inc., and Young's Egg Service, Inc., Third-Party Defendants-Appellees.

No. 15634.

United States Court of Appeals Sixth Circuit.

April 6, 1965.

Marvin B. Berke, Chattanooga, Tenn. (Berke & Berke, Chattanooga, Tenn., and Mayfield & Mayfield, Cleveland, Tenn., on the brief), for Willis Johnson Moss.

Alvin O. Moore, Chattanooga, Tenn. (Silas Williams, Jr., E. Blake Moore, Chattanooga, Tenn., on the brief; Spears, Moore, Rebman & Williams, Chattanooga, Tenn., of counsel), for Associated Transport, Inc.

Louis C. Harris, Chattanooga, Tenn. (Moon, Harris & Dineen, Chattanooga, Tenn., on the brief), for C. L. Young, and others.

Before WEICK, Chief Judge, and O'SULLIVAN and PHILLIPS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

The question for decision is whether in the jury trial of four consolidated diversity actions involving conflicting claims for death, personal injury and property damage arising out of a highway collision between two tractor-trailer combinations, the District Judge committed reversible error in separating the issues of liability for trial prior to the issues of damages. Separation of issues is authorized by Rule 42(b) F.R.Civ.P. which provides that "the court in furtherance of convenience * * * may order a separate trial of * * * any separate issue or of any number of * * issues."

Appellant, Willis Johnson Moss, was riding as a passenger in a tractor-trailer truck and was seriously and permanently injured when that vehicle collided with another tractor-trailer combination owned by appellee, Associated Transport, Inc., and being operated by its empolyee. The collision occurred in the nighttime bad weather of January 5, 1960. The driver of the Associated Transport vehicle and his only companion were both killed. The driver of the vehicle in which appellant Moss was a passenger, one Howard Hogsed, was also injured. Both vehicles were damaged.

In due season the widows of the driver and the occupant of the Associated Transport vehicle, Ruby Freshwater and Betty Brooks, brought wrongful death actions against the driver of the Moss vehicle, against the separate owners of the tractor and trailer making up the Moss vehicle, and against the driver's employer, viz.: C. L. Young, Hiawassee Feed Store, and Young's Egg Service, Inc. Associated Transport brought an action against the same four defendants for damage to its vehicles, and in such action Hogsed, Young and Hiawassee each counterclaimed against Associated, asserting that the collision had been caused by the negligence of Associated's driver. After the above three actions had been pending for some months, appellant brought the action here involved against Associated Transport for his personal injuries. By a pretrial order, and on his own motion, the District Judge consolidated all of the above litigation and, against appellant Moss' objection, directed that the jury should first try the issue of liability. Although the order is not specific on the point, it was evidently the judge's intention that the same jury would assess damages after it had resolved the liability issues.

By its general verdict and its answers to interrogatories, the jury found that the proximate causes of the collision were the negligent operation of the Moss vehicle by its driver and the gross negligence of its owners and those responsible for its operation in allowing it to be driven with defective brakes. The jury exonerated the driver of the Associated vehicle of any negligence "proximately causing or contributing to the accident." Accordingly it found for Associated and for the widows of its employees on the issue of liability and against appellant upon the same issue. The same jury which had given its verdict on liability returned to the box to consider the matter of damages, but before any testimony was offered in this regard the parties arrived at a settlement and judgments were entered on the agreement of the parties, awarding $75,000 to each of the plaintiff widows and $10,000 to Associated Transport. On January 4, 1963, a judgment of no cause of action was entered against Moss in accordance with the jury verdict.

On May 15, 1963, the District Judge filed an opinion denying Moss' motion for a new trial, which had asserted error in consolidation of the several cases for trial and in separation of the liability and damage issues. Moss v. Associated Transport, Inc., 33 F.R.D. 335 (E.D. Tenn.). This appeal challenging the propriety of the separation of issues followed.

1) The general rule.

There are not a few who question the wisdom of employing Rule 42(b) to divide personal injury damage actions into separate trials of the liability and damage issues, whether submitted seriatim to the same jury or to different juries. Some look upon the practice as but another procedural "gimmick" designed to assist current judicial efforts to mass produce dispositions of pending cases, but which merely multiplies the burdens of litigation. They feel that the occasional good it produces is greatly outweighed by the danger of unfairness being visited upon litigants who from right motives prefer to try their suits in the traditional fashion.

However, whatever academic disagreement there may be on the point, it seems now to be established that under Rule 42(b) a trial judge has the right within his discretion to do what was done here. Fidelity & Cas. Co. v. Mills, 319 F.2d 63 (C.A. 5, 1963); Rossano v. Blue Plate Foods, Inc., 314 F.2d 174 (C.A.5, 1963), cert. denied, 375 U.S. 866, 84 S.Ct. 139, 11 L.Ed. 93 (1963); Hosie v. Chicago & N.W. Ry., 282 F.2d 639 (C.A. 7, 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961); Chicago, R. I. & P. R. R. v. Williams, 245 F.2d 397 (C.A.8, 1957), cert. denied, 355 U.S. 855, 78 S.Ct. 83, 2 L.Ed.2d 63 (1957); Nettles v. General Acc. Fire & Life Assur. Corp., 234 F.2d 243 (C.A.5, 1956); Bowie v. Sorrell, 209 F.2d 49 (C.A.4, 1953); 5 Moore, Federal Practice ¶ 42.03 (2d ed. 1964); 9 Cyclopedia of Fed.Proc. § 31.04 (3d ed. 1951); Annot., 85 A.L.R.2d 9 (1962).

In support of his claim of prejudice, appellant asserts that because the separation prevented him from showing the severity of his own injuries, he was denied a weapon with which to combat the natural sympathy that a jury would feel for the two plaintiff widows who had, in effect, been made Moss' opponents by the consolidation. Without a record containing the proofs on the point, we have no basis for speculating whether the issue of liability was so close that sympathy for the widows might have tipped the scales in their favor. The material before us, however, does disclose that the appellant Moss was present in the courtroom and there is no challenge to the District Judge's statement that "the mental impairment and total disability of the plaintiff was for all practical purposes stipulated by the parties, as it was stated as a fact both in the opening statement and in the argument and never disputed." The extent of his injuries could also have been established in explanation of the failure to put him on the stand to testify on the issue of liability. From our review of all the...