Yazzie v. Sullivent

• Decision Date: 16 August 1977
• Docket Number: No. 75-1619,75-1619
• Citation: 561 F.2d 183
• Parties: Nita YAZZIE, Administratrix of the Estate of Daniel Joseph Yazzie, Deceased, Plaintiff-Appellant, v. John Herman SULLIVENT, H. J. Jeffries Truck Lines, Inc., and Excel Insurance Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 183

561 F.2d 183

Nita YAZZIE, Administratrix of the Estate of Daniel Joseph Yazzie, Deceased, Plaintiff-Appellant, v. John Herman SULLIVENT, H. J. Jeffries Truck Lines, Inc., and Excel Insurance Company, Defendants-Appellees.

No. 75-1619.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted July 20, 1977.

On Rehearing Aug. 16, 1977.

Benjamin S. Eastburn of Hynes, Eastburn & Hale, Farmington, N. M., for plaintiff-appellant.

Jonathan W. Hewes and James C. Ritchie of Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, N. M., for defendants-appellees.

Before BARRETT and DOYLE, Circuit Judges, and STANLEY, ^* District Judge.

ON REHEARING

WILLIAM E. DOYLE, Circuit Judge.

This cause is before the court following the grant of rehearing. Oral arguments on rehearing have been held and the matter now stands submitted.

This wrongful death action was instituted by Nita Yazzie as administratrix of the estate of her deceased husband, Daniel Joseph Yazzie. Defendants in the case are John Herman Sullivent, H. J. Jeffries Truck Lines, Inc., and Excel Insurance Company. Sullivent was the driver of a tractor-trailer rig which allegedly struck the decedent, Daniel Yazzie, and dragged his body for approximately 18 miles and, of course, completely mutilated his body. All of this occurred on February 2, 1973, the body having been discovered about 9:00 p. m. on that date.

The evidence in the case shows that on February 2, 1973, Daniel Yazzie left his home near Shiprock, New Mexico, intending to travel to Window Rock, Arizona to withdraw funds from the Navajo Credit Union in order to purchase a roping horse. Yazzie was driving his son's 1963 Chevrolet between the two towns, a distance of 100 miles.

The evidence showed that Yazzie, the husband of Nita Yazzie, the plaintiff, was a married man with three children. He had received a Bronze Star Medal and a Purple Heart while in the military. He had also been an athlete and was in good physical condition. His job was with the Navajo Tribal Water Works Department, where he had been employed for 15 years and was a foreman at the time of his death. He had been presented with an award by the Navajo Tribe. In addition to his job, he had a ranch and farm on which he did the work on weekends and weekdays, mornings and evenings. He also assisted his parents in running their farm. Nita Yazzie testified that he would occasionally drink but not to great excess.

The incident which led to decedent's taking this trip was an effort on the previous day to take possession of the horse. On that occasion the owner insisted on full payment, so it was necessary for Yazzie to pay $50.00 down and seek the balance from the credit union. His son, Rudolph, testified to this and also to the fact that his father borrowed the 1963 Chevrolet from his brother in order to make the journey. However, when 4:00 or 5:00 p. m. came and his father was not home, he, Rudolph, called the police station in search of him, thinking that he was stranded and needed a ride. Also, the automobile was not too dependable. This 1963 car was found after the death a few miles north of Gallup and was inoperable.

The mentioned truck furnished mute evidence that the trailer had struck the decedent and had dragged him, as indicated above. Sullivent, the driver, was arrested after the discovery of the body. He was charged with and pleaded guilty to drunken driving. He claimed to have known nothing about any contact with the body of Yazzie. He did, however, testify that he had inspected the truck and had observed the blood on the undercarriage of the trailer after he was stopped by the police. At trial he testified that there were blood stains on the spare tire rack, the side board racks, and generally at the back end of the trailer. In his deposition he stated that there was blood splattered on the bumper guard and mud flaps. These indicated that the wheels had splattered it.

At 2:48 a. m. on February 3, 1973, Sullivent was taken to the Gallup Police Department Police Headquarters, where an alcohol test was administered. A blood sample taken was found by the chemist to have an alcohol content of .13%. The chemist said that a man of Sullivent's size would have had to drink at least eight beers in an hour's time to reach that level. On a full stomach, which Sullivent claimed he had (before he started drinking), the chemist testified that it would require about ten beers in an hour's time. A noteworthy fact is that Sullivent had left the bar before 9:00 p. m. and the test was administered at 2:48 a. m. This would have indicated that his blood alcohol at 9:00 p. m. would have been between .19% and .28%.

Dr. Weston, the chief medical investigator for the state, testified that a person having .10% or greater is considered to have impaired judgment and impaired reactions. With a blood alcohol level of .22% the individual is considered stupid drunk or comatose.

Testimony was given by a general practitioner, who was the county coroner in Gallup, concerning Yazzie. This physician said that he removed blood from the left ventricle of the heart, and that the alcohol content was .334%. Dr. Weston, the medical examiner, was asked about the accuracy of such a test and he said that in view of the fact that the heart of Yazzie had been found in the area of the stomach, there was a strong likelihood of contamination, which raised a question as to the validity of the finding. The reason is that when the heart is removed from its normal location, it is torn across one or several of the blood vessels which serve the chest cavity, and when those vessels are completely dislodged there is a resultant contamination.

The above-mentioned rig consisted of a tractor which was 15 feet long together with a flatbed trailer which was 40 feet long. Various evidences of its movements appeared on the highway.

The witness Samuels, a Navajo Tribal Policeman, made an investigation at about 9:00 p. m. on February 2, at which time he was called to the scene. The torso of the body of Yazzie was found on State Road 264 between Window Rock and Ya-ta-Hay Junction. Part of the torso was on the roadway and the remains were scattered along the highway towards the west. Samuels, together with one Stewart, a special investigator for the Window Rock Police Department, backtracked from the place where the body was found and were able to see marks on the highway showing where the body had been dragged. Samuels testified that he and Stewart found a sleeve 100 yards north of Eddie's Bar which is on From the point just north of Eddie's Bar where the road turns to the left, the drag mark or blood trail started. This was approximately one-tenth of one mile north of where the sleeve had been found. The mark on the highway continued for approximately two or three miles to Gamerco, where there were railroad tracks.

Highway 666 on the east side of the road. This marked the beginning of the evidences of dragging and mutilation. Tire impressions were here found and the sleeve was discovered between the tire impressions. This was approximately two feet off of the pavement. It had drops of clotted blood and there was some blood on the sleeve. Samuels said that people were known to hitchhike from that area.

From the railroad tracks north the drag marks were heavy or distinct, ranging from 12 to 24 or 25 inches in width, and continued down Highway 666 and appeared on State Road 264. There is a turnoff from Highway 264 to 666 and the truck took it. The turnoff merges into 264 at the eastbound lane, and at that point Samuels and Stewart found a hand. The blood trail continued down the road to the place where the remainder of the body was found. The trail of the truck was a weaving one from the place where the sleeve was found. Officer Samuels stated that "In some places it went off the side of the shoulder of the road, and in places it crosses the center lane on this side, and back onto the right-hand side of the road."

At the place where the sleeve was found, which is also the area where there is an inference that the decedent was hit by the truck or trailer, there are tracks arguably of the trailer which left the road at this point. The trail starts soon thereafter.

Appended to this opinion are photographs of the rig which depict the magnitude of this truck and trailer. The evidence established that to make a turn, such as that at the place where the sleeve was found, the tractor must swing wide. The rear wheels of the tractor will then track inside the rear wheels of the trailer. The latter wheels will leave the highway. The circumstances here indicate that the tractor and trailer in making this turn may have gone into the area where hitchhikers often wait for rides. From the evidence, it would appear that this is the place where the trailer probably caught the decedent.

The jury on April 30, 1975, returned a verdict in favor of Nita Yazzie in the amount of $75,000. The defendants then moved for judgment notwithstanding the verdict. This motion was granted by the court on May 29, 1975. The trial court did not write an opinion in connection with the granting of this judgment. It merely said that the evidence was insufficient to support it on the question of causation. The court did write a memorandum opinion when it denied the motion of plaintiff-appellant for a new trial. In that opinion it said:

Briefly, this is a wrongful death case in which plaintiff alleges that decedent's death was due to the negligent manner in which defendant Sullivent was driving his truck. The case was tried to a jury, which returned a verdict for plaintiff. On timely motion of defendants, judgment was granted notwithstanding the verdict in favor of defendants, pursuant to F.R.C.P. 50, on the grounds that, considered in the light most favorable to plaintiff, as a matter of law there was not sufficient evidence of causation to support the jury's verdict. At its most favorable, plaintif...