200 F2d 74 Field v. Witt Tire Co of Atlanta Ga

200 F.2d 74

FIELD

v.

WITT TIRE CO. OF ATLANTA, GA., Inc. et al.

No. 57.

Docket 22447.

United States Court of Appeals Second Circuit.

Argued October 7, 1952.

Decided October 31, 1952.

On June 15, 1950, at about 9:15 A.M., a collision occurred in Wallingford, Connecticut, between an automobile driven by Howard Field, who was proceeding south on a straight, level stretch of Route 5 of Wallingford, and a truck driven by Thomas D. Flowers, who was traveling north. Field was rendered unconscious and died. The truck was owned by the defendant, The Witt Tire Company, which admitted that Flowers was its employee and agent driving the truck. The truck had been leased to defendant Safety Transportation Company, and the I.C.C. license-plate was issued to Safety. Plaintiff, Field's executrix, brought the present suit against the defendants under the Connecticut wrongful-death statute, alleging that the collision was caused by the truck driver's negligence in that he did not reduce his speed and give the decedent half the road, as required by Section 2489, General Statutes of Connecticut, Revision of 1949, which states in part: "Any person, when driving, operating or having the custody of a vehicle on the highway, who shall meet any person driving, riding or leading a horse or other animal, or driving or operating a vehicle in the traveled portion of such highway, shall reduce its speed when reasonable care shall require and seasonably turn to the right so as to give half of the traveled portion of such highway, if practicable, and a fair and equal opportunity to the person so met to proceed; * * *."

Federal jurisdiction was based on diversity of citizenship. Plaintiff was a resident of Connecticut. The Witt Tire Company was a Georgia corporation, Safety Transportation Company, a North Carolina corporation, and Flowers was a resident of North Carolina. The sole living eye-witness was Flowers, who testified at the trial that the decedent's car had come over on the truck's side of the highway and that the collision occurred there. A photograph of the cars, made shortly after the accident, showed them on the west shoulder of the road, almost in contact, and showed broken glass and debris from the cars on the ground nearby. Witnesses, including a police officer, who arrived at the scene not long after the collision, testified that they found no glass, debris or tire-marks at the point where Flowers said the collision occurred or elsewhere on the highway in the vicinity of that point.

At the time of the collision in January 1950, and when the suit was begun on April 20, 1951, the Connecticut wrongful-death statute1 provided for the recovery of "just damages not exceeding twenty thousand dollars" plus medical expenses. Before the trial, which occurred in January 1952, this section was repealed and a substitute Act was passed, effective October 1, 1951, providing for recovery of "just damages," plus expenses, and without limit of amount.2 The trial judge charged the jury that the new statute applied, and that, accordingly, should the jury find for the plaintiff, they should assess the damages without reference to the former statutory limit. He added: "That is not to say that I wish to indicate that the verdict should be greater than any limit which formerly existed or, for that matter, less than the former limit, but merely to state that you shall not consider any statutory limit but shall arrive at the amount of just damages under the rules which I have given you without consideration of any statutory amount. The question of the amount is entirely for your determination under these rules." The defendants excepted to this charge.

The jury returned a verdict for plaintiff in the sum of $30,000. On motion for new trial, the judge ruled that the new statute was inapplicable, and granted the motion, ordering a new trial unless within ten days the plaintiff filed a remittitur of so much of the verdict as exceeded $21,201,3 the maximum recoverable under the former statute. On plaintiff's argument that such an order would make difficult an appeal by plaintiff, the judge revoked that order and entered final judgment for $21,201. Plaintiff appeals because of the reduction. Defendants also appeal, asserting several errors.

Gumbart, Corbin, Tyler & Cooper, New Haven, Conn. (John B. Grant, Donald F. Keefe and Thomas G. Meeker, New Haven, Conn., of counsel), for plaintiff.

David M. Reilly and Martin E. Gormley, New Haven, Conn., for defendants.

Before SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.

FRANK, Circuit Judge.

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1. We reject defendants' contention that the evidence was not enough to support the verdict. The photograph showing the cars on the west shoulder of the road, together with the absence of debris or tire-marks elsewhere, justified an inference that the north-bound truck had turned left across the center before it hit Field's car. This sufficed to warrant the conclusion that Connecticut General Statute, § 2489 had been violated.4 LeBlanc v. Grillo, 129 Conn. 378, 28 A.2d 127.

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2. A witness for plaintiff testified that Flowers, the truck-driver, seemed sleepy after the accident. Flowers, on direct, testified that he was not then sleepy. On cross-examination, over defendants' objections, he answered that he had not been in bed for many hours before the accident. Defendants urge that the reception of this testimony was error. Of course, it was not since it served to explain why Flowers may have driven carelessly.

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3. Judge Smith concluded that, in interpreting the Connecticut statute, he was bound to follow several interlocutory decisions of the Connecticut Superior Court, not officially reported, which held the amended wrongful-death statute not retroactive. Plaintiff argues that, on the authority of King v. Order of United Commercial Travelers, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608, such decisions do not control, on the ground that (so plaintiff asserts) they are not stare decisis in the Connecticut courts.5

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We find it unnecessary to consider that interesting problem because, assuming we are free to determine for ourselves how the highest court of Connecticut would decide, we think that, on the basis of its own decisions, it would agree with the Superior Court decisions. When the new statute was enacted, there existed a Connecticut statute reading in part: "The passage or repeal of an act shall not affect any action then pending."6 This statute is declaratory of the rule, recognized by the Connecticut Supreme Court, that legislation is not to be applied retroactively unless the legislation unequivocally expresses a contrary intent. Massa v. Nastri, 125 Conn. 144, 146-147, 3 A.2d 839, 120 A.L.R. 939; Demarest v. Zoning Commission, 134 Conn. 572, 575, 59 A.2d 293. To this rule there is an exception of "statutes which are general in their terms and affect matters of procedure". However, this exception does not include a statute which, although in form providing but a change in remedy, actually brings about "changes involving substantive rights." Loew's Enterprises, Inc. v. International Alliance of T.S.E., 127 Conn. 415, 418, 17 A.2d 525, 527; Demarest v. Zoning Commission, 134 Conn. 572, 575, 59 A.2d 293; Reese v. Reese, 136 Conn. 191, 195-196, 70 A.2d 123; cf. Massa v. Nastri, supra. We think the new statute so markedly affects "substantive rights" that the Connecticut Supreme Court would interpret it as not retroactive.

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4. Defendants contend that it was error to instruct the jury that the recoverable damages were not limited; that this error could not be cured by subsequently limiting the judgment to the proper figure; and that, therefore, there must be a new trial. We do not agree. The verdict was the equivalent of a special verdict stating what the jury found to be the damages regardless of the statutory limit. With such a verdict before him, the judge correctly reduced the amount of the judgment.

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Affirmed.

Notes:

1. Connecticut General Statutes, 1949 Supp., Sec. 679a:

"In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages not exceeding twenty thousand dollars together with the costs of reasonably necessary medical, hospital and nursing services, and funeral expenses, provided no action shall be brought to recover such damages and disbursements but within one year from the neglect or fault complained of. Effective July 1, 1949."

2. 1951 Supp., Sec. 1392b:

"In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within one year from the neglect or fault complained of."

3. The $1,201 was for expenses proved by plaintiff and not disputed.

4. Judge Smith said: "The jury had before it the testimony of the defendants' driver that, just prior to the accident, the decedent's car was traveling south, the defendants' truck, north, on a straight level stretch of Route 5 of Wallingford. The jury could have credited this testimony even though obviously they discredited the driver's further testimony that Field had come over on the truck's portion of the highway and that the collision occurred there. There was physical evidence in the presence of glass and chrome trim on the ground near where the vehicles came to rest, off the traveled portion of the road to the West, from which the jury could place the point of collision. If the collision occurred where the debris was found, the truck must have crossed the western half of the traveled portion of the highway just prior to the collision and in so doing have violated its duty, under the rules of the road, to the passenger car approaching from the north."

5. See Sunbeam Corp. v. Civil Service Employees Cooperative Association, 3 Cir., 187 F.2d 768; Roland Electrical Co. v. Black, 4 Cir., 163 F.2d 417, 423, 6 A.L.R. 2d 82; Producers Releasing Corp. v. Pathe Industries, 2 Cir., 184 F.2d 1021; cf. Lembcke v. United States, 2 Cir., 181 F.2d 703; State of Cal., Dept. of Employment v. Renauld, 9 Cir., 179 F.2d 605, 609.

6. Revision of 1949, III, Sec. 8890.