USAC TRANSPORT v. Corley
| Decision Date | 29 January 1953 |
| Docket Number | No. 13991.,13991. |
| Citation | 202 F.2d 8 |
| Parties | U. S. A. C. TRANSPORT, Inc. et al. v. CORLEY. CORLEY v. U. S. A. C. TRANSPORT, Inc. et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
A. Walton Nall, Walter G. Cooper and Samuel A. Miller, Miller & Head, Nall & Sterne and McFarland & Cooper, all of Atlanta, Ga., for appellants.
Thomas B. Branch, Jr., Joseph F. Haas, James A. Branch and Herbert J. Haas, all of Atlanta, Ga., for James W. Corley.
Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.
Near the south side of a bridge on HighwayNo. 41, in Bartow County, Georgia, a heavily loaded tractor-trailer of the U. S. A. C. Transport, Inc., and an automobile, owned and driven by James W. Corley, collided.The truck driver was killed.Corley was injured.The mother of the driver of the truck brought suit against Corley.The suit was settled under circumstances hereinafter referred to.In the action now under review, Corley, alleging the negligence of the truck driver as the cause of the collision, filed suit against the Transport Company and its insurance carrier seeking damages for personal injuries and property damage.The defendants, for answer, denied all charges of negligence of the truck driver and by way of additional defenses asserted that the plaintiff failed to observe ordinary care for his own safety, and to avoid injury; that his own negligence was the cause of the collision; and that plaintiff's negligence equaled or exceeded that of the truck driver.For a seventh defense defendants alleged that the mother of the truck driver had brought action for his death against Corley; that Corley's counsel had settled this suit by payment to her of the sum of $6900, and had taken a release evidencing such settlement; that the defendant's liability is purely derivative from said driver so that he could have been joined as a defendant in the present suit, and accordingly the settlement and release barred the present action and extinguished the cause of action asserted.
The case was tried by the Judge without a jury.He found the truck driver negligent; that the plaintiff was at the time in the exercise of ordinary care, and awarded plaintiff damages of $4,000.
Upon this appeal the Transport Company assigns errors which, summarized, contend: (1) That the Court erroneously permitted the driver of the car to testify as to the circumstances of his speed, manner of car operation, and portion of the highway which he occupied as he approached the bridge in question and until the collision.The admission of such evidence is said to be contrary to the provisions of Section 38-1603(3) of the Georgia Code.1(2) That the release of Corley secured in settlement of the suit by the mother of the truck driver settled and extinguished his claim against such driver's employer and should have been admitted in evidence and so construed and applied.(3) That the Court's findings of fact as to the circumstances and cause of the collision are clearly erroneous.
By cross-appeal, Corley insists that under the Court's finding as to his freedom from negligence there is no basis for any apportionment of damages so that the Court's award of only $4,000 damages is, under the facts, so inadequate as to "shock the conscience", and is therefore clearly erroneous.It is insisted that we should "substantially increase the judgment" and "then affirm."Upon oral argument here, we are moved, if we are not disposed to so affirm, to set aside the findings as clearly erroneous and reverse for a new trial on the question of damages.
The contention of the appellant that "the infliction of a negligent tort is the transaction within the meaning of the Georgia statute", in support of which are cited two Georgia decisions,2 is not challenged by the appellee, although for reasons stated, it is contended that statute would not render inadmissible the testimony here involved.Nevertheless, we think the legal proposition may be more accurately phrased by the statement that the Georgia decision first cited, supra, held that the statute required the exclusion of testimony of a claimed specific negligent act of the defendant's agent, since deceased, which immediately and directly caused the plaintiff's injury.This ruling related, and was confined, to testimony as to the negligent conduct of the deceased agent.This is made clear by the precise ruling that "We think the act of the engineer is covered by the word `transaction' used in this section."3Furthermore, the decisions, in ruling upon another point, declared: "He might have stated whether he attempted to mount hurriedly or slowly; how far he was from the engine when he raised his foot to make the attempt; where he placed his foot; and things of that sort."87 Ga. 374, 13 S.E. 460.
The question was again before the Georgia Supreme Court in Atlanta, K. & N. Ry. Co. v. Roberts, 116 Ga. 505, 42 S.E. 753, where the Court considered the ruling in the Mayfieldcase, supra, to be that the witness was incompetent to testify in his own behalf as to the negligent act of the engineer.In the Roberts casethe plaintiff was injured when the railroad car in which he was working was moved by the defendant and while being moved was derailed and overturned.The injury occurred when the plaintiff jumped from the car after it became apparent to him that the car was derailed.The Court held that the plaintiff was properly permitted to testify as to what he was doing at the time he was hurt because this did not relate to any transaction between him and the dead engineer.Further, it was held that the rate of speed of the car was an independent fact and was not a transaction between the parties in any sense.It was pointed out that the transaction ruled on in the Mayfield case referred to the act of two parties, one of whom was injured, in his attempt to do something which he had a right to do, by a concurrent act of the party who was deceased.
In Rogers v. Carmichael, 53 Ga.App. 343, 198 S.E. 318, where plaintiff and a deceased agent entered into an agreement whereby the agent was to demonstrate an automobile, and while the automobile was being demonstrated pursuant to the agreement, it was wrecked and the agent was killed, the Court held that the plaintiff was incompetent to testify as to the negligence of the agent in a suit brought to recover for injuries sustained in the accident.The specific evidence excluded was plaintiff's testimony that the cause of the accident was the excessive speed at which the agent was driving the automobile; a certain oral communication between plaintiff and the agent; and plaintiff's statement as to what he was doing at the time of the accident.The Court held that the speed of the automobile was not a single, independent, physical act of the deceased in which the plaintiff was in no way connected, because the car was being run in pursuance of an alleged agreement between the parties to demonstrate it.
These three are the only Georgia caseswe have discovered dealing with the question of what aspects of the circumstances attendant upon...
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Allstate Ins. Co. v. Hill, 21672
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