Stemler v. Burke

• Decision Date: 21 April 1965
• Docket Number: No. 15481.,15481.
• Citation: 344 F.2d 393
• Parties: Mildred STEMLER, Executrix of the Estate of John E. Stemler, Mildred Stemler, Robert F. Badgley, Frederick W. Rogers and Alice W. Rogers, Plaintiffs-Appellants, v. Arch BURKE, James Rogers Burke, a Minor, Seventeen Years of Age, and Edward Burke, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

344 F.2d 393 (1965)

Mildred STEMLER, Executrix of the Estate of John E. Stemler, Mildred Stemler, Robert F. Badgley, Frederick W. Rogers and Alice W. Rogers, Plaintiffs-Appellants, v. Arch BURKE, James Rogers Burke, a Minor, Seventeen Years of Age, and Edward Burke, Defendants-Appellees.

No. 15481.

United States Court of Appeals Sixth Circuit.

April 21, 1965.

Jack Glenn Williams, Cincinnati, Ohio, Lester & Riedinger, Newport, Ky., on brief, for appellants.

William A. Young, Frankfort, Ky., for appellees.

Before WEICK, Chief Judge, MILLER, Circuit Judge, and GRAY, District Judge.

MILLER, Circuit Judge.

This appeal challenges the dismissal of personal injury actions filed by the plaintiffs-appellants against the defendants-appellees for damages incurred in an automobile accident between the car in which four of the plaintiffs were riding and a car operated by the defendant James Burke. The judgment of dismissal was based upon the answer by the jury of an interrogatory submitted to it, which stated that the negligence of the defendant Burke, if found to exist, was not the direct and proximate cause of the accident.

On June 20, 1959, a Chrysler automobile, which was owned and was being operated by the plaintiff Robert F. Badgley was proceeding northeastwardly on U. S. Highway 42 from Louisville, Kentucky, towards Cincinnati, Ohio. The plaintiffs, Mildred Stemler, Frederick W. Rogers, and Mrs. Alice W. Rogers, were guest passengers in the car. John E. Stemler was not in the car, but brought an action as husband of the injured Mildred Stemler. Frederick W. Rogers brought his action as the husband of the injured Alice W. Rogers, who also sued for her own injuries and expenses. All of the plaintiffs were citizens of Ohio.

Following the Chrysler automobile and going in the same direction was a Ford automobile being operated by the defendant James Burke. His brother, Edward Burke, who was in the Armed Services at Fort Knox, Kentucky, was also in the car. He had notified his family that he wanted to come home and James had driven the Ford to Fort Knox to get him. James and Edward were taking turns driving. Edward Burke was made a defendant in the actions on the ground that he claimed equitable ownership of the car. Their father, Arch Burke, was not in the car, but was made a defendant in the actions on the ground that under the laws of Kentucky he was responsible for the driving of his son, James Burke, under the family purpose doctrine and under the general laws of agency.

An Oldsmobile automobile, owned and being operated at the time by William F. Warner of Cleveland, Ohio, was also travelling in the same direction and ahead of the Chrysler automobile, which was being operated by Badgley.

The accident arose in the following way. The Oldsmobile, being operated by Warner, had just topped a slight rise in the road, and after travelling a short distance past the crest, had come to a stop for the purpose of picking up a hitchhiking soldier who was walking along the highway. The Chrysler, being operated by Badgley a short distance behind, came over the same rise. The evidence is in dispute whether the Chrysler automobile ran into the rear of the Oldsmobile or stopped just before striking it. Immediately thereafter, the Ford automobile also came over the rise and, after skidding approximately 46 feet, ran into the rear of the Chrysler car, causing the injuries complained of.

By reason of the view which we take of the case, it is unnecessary to review the evidence in detail. The accident occurred upon a two-lane hard-surfaced arterial highway in broad daylight. There was no oncoming traffic from the opposite direction. The weather was clear and dry. There was testimony that the Ford had followed the Chrysler for several miles, that it was about six lengths (120 to 140 feet) behind, that it was going about 40 to 50 miles an hour, that this speed had remained pretty well constant, that the driver did not slow down as he approached the crest, that before the collision he saw the red stop lights burning on the back of the Chrysler car, that he said something to his brother about the lights, that the driver put on his brakes and skidded approximately 46 feet before coming into contact with the rear of the Chrysler automobile.

There was also testimony from an eye witness to the accident that the Warner Oldsmobile, the first car in the line of three, slowed down to pick up a soldier walking on the road, that the driver signaled with his left arm that he was slowing down, and gradually did so, and that when the car came to a stop the two wheels on the right side were off on the grass and the two left wheels were on the concrete. This witness also testified that the Chrysler, being the second automobile in the line, was about three or four car lengths behind the Oldsmobile, but did not appear to slow up any and went right on and hit the first car, followed in a second or two by the third car striking the second car.

There was also contradictory evidence that the driver of the Oldsmobile gave no signal that he was slowing down, that when the Oldsmobile came to a stop none of its wheels was off of the concrete and that the Chrysler slowed down when the driver noticed that the Oldsmobile ahead of it was coming to a stop.

The plaintiffs filed separate actions in the District Court against the three defendants, Arch Burke, James Burke, and Edward Burke. They did not include as defendants in any of these actions either Badgley, the driver of the Chrysler, or Warner, the driver of the Oldsmobile, which was first in line. The defendants were citizens of Kentucky. Jurisdiction was based upon diversity of citizenship and the amount involved.

The defendants filed third-party complaints against Badgley and Warner in the four actions brought by the plaintiffs other than Badgley and against Warner alone in the suit of Badgley. These third-party complaints alleged that negligence on the part of the third-party defendants was the proximate cause of the injury and sought judgment over against them for the whole of any amount that might be adjudged against the defendants, or in the alternative, contribution from the third-party defendants. The third-party defendant Badgley filed an answer denying any negligence on his part and cross claimed against the defendants and Warner for indemnity, or, in the alternative, for contribution. Service of summons upon the third-party defendant William F. Warner was had constructively upon the Secretary of State of Kentucky under the Kentucky Statute. Warner, whose last known address was in Ohio, never appeared in the action. The five separate actions were consolidated for trial, at the conclusion of which the Court submitted to the jury several interrogatories dealing with the alleged negligence of the defendants, the alleged contributory negligence of Badgley and the alleged negligence of Badgley as a third-party defendant.

The first interrogatory, dealing with the alleged negligence of the defendants, was the only one answered by the Jury. Its answer to this interrogatory stating that the alleged negligence of the defendant was not the proximate cause of the accident made it unnecessary, in accordance with the Court's instructions, to answer the remaining interrogatories. Judgments of dismissal followed. Each of the plaintiffs in the five actions whose claims were dismissed took the appeals which we now...