Seyfer v. Gateway Baking Company

• Decision Date: 14 February 1958
• Docket Number: Civ. A. No. 1379.
• Citation: 159 F. Supp. 167
• Parties: Robert P. SEYFER, Jr., and N. J. Lueken, Plaintiffs, v. GATEWAY BAKING COMPANY, now Colonial Baking Company of Fort Smith, Defendant.
• Court: U.S. District Court — Western District of Arkansas

159 F. Supp. 167

Robert P. SEYFER, Jr., and N. J. Lueken, Plaintiffs, v. GATEWAY BAKING COMPANY, now Colonial Baking Company of Fort Smith, Defendant.

Civ. A. No. 1379.

United States District Court W. D. Arkansas, Ft. Smith Division.

February 14, 1958.

Hardin, Barton, Hardin & Garner, Bryan & Fitzhugh, Ft. Smith, Ark., Spitzberg, Bonner, Mitchell & Hays, Little Rock, Ark., for plaintiffs.

Daily & Woods, Ft. Smith, Ark., for defendant.

JOHN E. MILLER, District Judge.

Statement

The plaintiffs filed their complaint in the Sebastian Circuit Court, Fort Smith Division, on September 18, 1957. The defendant, Colonial Baking Company of Fort Smith, duly and timely removed the case to this Court.

The plaintiffs alleged that on the 12th day of June, 1957, at approximately 1:30 p. m., plaintiff, N. J. Lueken, was driving his automobile in a generally westerly direction on the Arkoma Highway or South Y Street in the City of Fort Smith, Arkansas, in a careful and prudent manner; that the plaintiff, Robert P. Seyfer, Jr., was riding in the car as a passenger; that as the plaintiff, Lueken, entered the intersection of Wheeler Avenue, the servant and employee of defendant while driving a truck of defendant and acting in the course of his employment, did carelessly and negligently drive the truck into and collide with the automobile owned and driven by the plaintiff, Lueken, and occupied by the plaintiff, Seyfer, as a passenger.

That the defendant and its servant and agent were guilty of negligence in (1) failing to keep a proper lookout, (2) failing to yield the right of way to plaintiffs, (3) failing to keep the truck under reasonable control, (4) driving at a fast and dangerous rate of speed under the circumstances then and there existing, and (5) failing to exercise reasonable care to avoid damages and injury to the plaintiffs after observing them in a position of peril.

That the above acts of negligence were the sole proximate cause of the resulting accident and damages sustained by plaintiffs.

The plaintiffs further alleged that they each received serious personal injuries, incurred medical and hospital expenses, and were damaged by the loss of time from their respective employments as a result of the negligence of the defendant's servant in the operation of its truck. Each of the plaintiffs prays for recovery of damages for personal injuries, medical and hospital expenses and loss of earnings. The plaintiff, Lueken, further alleged that his automobile was damaged in the sum of $1,500, and he prays for recovery of said sum for property damage in addition to the recovery for the personal injuries, medical and hospital expenses, and loss of earnings allegedly sustained by him.

On October 12, 1957, the defendant filed its answer and counterclaim, in which it admitted that a collision occurred on the date alleged in the complaint between the automobile being driven by plaintiff, Lueken, in a westerly direction on South Y Street and a truck of the defendant driven by one of its employees on Wheeler Avenue, or Highway 22 truck route, in a northerly direction in the City of Fort Smith, Arkansas.

The defendant specifically denied the allegations of negligence contained in the complaint, and for lack of information or knowledge sufficient to form a belief denied that plaintiffs received personal injuries, incurred medical and hospital expenses and lost earnings as alleged in the complaint.

The defendant further alleged that the injuries suffered by each of the plaintiffs, if any, at the time and place alleged in the complaint were solely and proximately caused by the negligence of each of the plaintiffs and the contributory negligence of each of the plaintiffs at the time and place alleged in the complaint; that the contributory negligence of each of the plaintiffs exceeds in degree all other negligence contributing to the alleged injuries suffered by each, and is, therefore, a bar to the cause of action of each plaintiff.

By way of counterclaim, defendant alleged that its truck was damaged in the collision in the amount of $455 as a result of the negligence of the plaintiffs, and each of them.

That the plaintiffs on the date alleged in the complaint were both employees of Bopp Beauty and Supply Company of Little Rock, Arkansas, as salesmen, and that they were both acting for said employer in the performance of the duties of their employment, and were upon a joint mission in the performance of their employer's business for their joint and mutual benefit, and were joint adventurers with equal right to control the movements of the vehicle which they were operating, or, in the alternative, that they were engaged in a joint mission and "one of the plaintiffs was the superior and the other the agent, one of the other, the exact facts as to the status and true relation between the plaintiffs as to the equality or inequality of their authority between themselves being unknown to the defendant, but well known to the plaintiffs, but in either event they were acting for each other upon a common enterprise in the performance of their common employment for the same employer in the furtherance of the latter's business.

"That Wheeler Avenue or Highway 22 truck route, upon which defendant's vehicle was traveling, is a through highway, having been so designated by the State Highway Department and the City of Fort Smith, at the point of its intersection with South Y Street, and plaintiffs' automobile was enjoined by statute and ordinance and by traffic warning signs erected upon said South Y Street to stop before entering the intersection with Wheeler Avenue or Highway 22 truck route."

That the plaintiffs were driving west upon South Y Street at a reckless, dangerous and unlawful rate of speed, without keeping a proper lookout ahead and for other vehicles lawfully traversing Wheeler Avenue or Highway 22 truck route, and without keeping their vehicle under control, and failed and neglected to yield the right of way to the defendant's vehicle traveling upon Wheeler Avenue or Highway 22 truck route; plaintiffs failed to heed the traffic signs and signals on South Y Street and to stop before entering its intersection with Wheeler Avenue or Truck Route 22; that plaintiffs saw, or in the exercise of reasonable care should have seen, the defendant's truck approaching the intersection from their left and from the south, and knew, or by the exercise of ordinary care on their part should have known, that the defendant's truck had the right of way at said intersection and was traversing a through highway and was in a position of peril and danger if the plaintiff should fail to heed and obey the traffic laws of the State of Arkansas; that nevertheless the plaintiff, and each of them, continued to operate their automobile in a heedless disregard of the rules of the road and the obvious position of peril and danger which their actions created for the defendant's truck.

That the collision between said truck and automobile was solely and proximately caused by the negligence of the plaintiffs and each of them.

On October 12, 1957, the defendant filed its motion for severance of the causes of action of each of the plaintiffs pursuant to Rule 21, F.R.C.P., 28 U.S. C.A., and motions for leave as a third party plaintiff to serve a summons and third party complaint upon each of the plaintiffs.

On October 15, 1957, the motion for severance of the causes of action for each of the plaintiffs was granted.¹

Also, on the same date the motions for leave to file third-party complaints were granted.

On October 21, 1957, the defendant filed its third-party complaint against the plaintiff, Robert P. Seyfer, Jr., in which it alleged that the plaintiff, Robert P. Seyfer, Jr., was guilty of certain acts of negligence specifically alleged, which proximately caused and contributed in whole or in part to any injuries suffered and sustained by the plaintiff, N. J. Lueken, to his person or property in the collision complained of in the complaint against the defendant and third-party plaintiff.

It was further alleged in the third-party complaint:

"Under the provisions of the Arkansas Contribution Among Joint Tort Feasors Act the defendant is entitled to contribution from N. J. Lueken to any judgment that may be rendered in favor of Robert P. Seyfer, Jr., against this defendant and in an amount proportionate to the degree of negligence of N. J. Lueken found to contribute to said accident and injury, if any."

Also, on the same date, October 21, 1957, the defendant filed its third-party complaint against the plaintiff, N. J. Lueken, containing allegations similar to the third-party complaint filed against the plaintiff, Robert P. Seyfer, Jr.

In due time the plaintiffs filed separate answers to the third-party complaints, and also filed a joint reply to the counterclaim of the defendant.

On January 2, 1958, the defendant filed its motion to make Universal Security Insurance Company an involuntary plaintiff or defendant under Rule 19, and alleged that the said insurance company had issued its policy of collision insurance to the plaintiff, N. J. Lueken, covering his automobile damages in the collision complained of in the complaint, with a $50 deductible provision, and that the said insurance company had paid the plaintiff, Lueken, the amount of the damages he suffered to said automobile, less said $50 deductible. That under its policy contract and the rules of common law, said insurance company is subrogated, to the extent of the payment made by it to plaintiff, N. J. Lueken, to the plaintiff's claim against this defendant for property damage, and that said insurance company and the plaintiff, Lueken, are therefore jointly the owners of said property damage claim asserted in the plaintiffs' complaint and have a joint interest in said claim.

On January 15, 1958, the motion of defendant to make Universal Security Insurance Company an involuntary plaintiff was...