Wilsey-Bennett Trucking Company, a Corporation v. A. W. Frost and M. K. Hall
This text of 275 F.2d 144 (Wilsey-Bennett Trucking Company, a Corporation v. A. W. Frost and M. K. Hall) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Two semi-trailer trucks collided on a New Mexico highway causing substantial damage to both vehicles. The plaintiff Frost brought this action against the defendants Bryant, Pike and WilseyBennett Trucking Company, alleging that the collision was caused by the concurrent negligence of Bryant who was operating one of the trucks for Pike, and of the driver of a third truck owned by the defendant Wilsey-Bennett. M. K. Hall intervened and alleged that he was the owner of the truck driven by the defendant Bryant, and sought recovery from Wilsey-Bennett for damages to his truck and for the loss of its use. The principal defense of Wilsey-Bennett was that none of its trucks was in the vicinity when the accident occurred. 1 The trial court found for both the plaintiff and the intervenor.
The accident occurred at about 4 o’clock in the afternoon on November 21, 1957 while the plaintiff was driving his truck between Roswell, New Mexico and El Paso, Texas on U. S. Highway 70. It was a stormy day with snow and ice forming on the highway. During the noon hour, Frost had lunch at a truck stop north of Roswell. When returning to his truck after lunch he observed a pink Peterbilt truck parked nearby which he recalled as having “Risley-Bennett” or “Wilsey-Bennett” painted on it. Some time after leaving Roswell, Frost, who was driving in a southwesterly direction, overtook a pickup truck which was being driven slowly, but due to the condition of the highway he was unable to pass it. While Frost was following the pickup, he observed behind him what he described as the “odd colored” Peterbilt truck which he had seen in Roswell. Shortly thereafter this truck passed Frost and for some time remained between his vehicle and the pickup truck. As the Peterbilt was starting up a small hill and was approaching a rather sharp curve, it turned out to pass the pickup. Before the passing had been completed, the semitrailer truck driven by Bryant approached from the opposite direction. Bryant pulled his truck over to the extreme right side of the highway and slowed his speed to allow room for the other truck to pass and to avoid a head-on collision. Frost testified that when the Bryant truck attempted to reduce its speed, it began to skid, partially jack-knifed, and then crossed over the center of the highway and into his trailer. 2 Bryant’s testimony *147 as to the movement of the Peterbilt truck was substantially the same as that of Frost. He thought, however, that the plaintiff’s trailer swung over into the east-bound lane of the road and the collision occurred there. The driver of the Wilsey-Bennett Peterbilt truck testified that he was in Alamogordo, New Mexico, 47 miles away, at the time of the accident. The court accepted Frost’s version of what happened and found that Frost and Bryant operated their vehicles without negligence. The judgment allowed Frost $2,250 damages and the intervenor Hall $1,238.89.
Findings of fact by the trial court on controverted issues will not be set aside unless clearly erroneous. Fed. Rules Civ.Proc. rule 52(a), 28 U.S.C.A.; Knudson v. Boren, 10 Cir., 261 F.2d 15; Federal Security Insurance Co. v. Smith, 10 Cir., 259 F.2d 294; Van Dreal v. Van Dreal, 10 Cir., 214 F.2d 715. It is the function of the trial court to resolve all issues and disputes which arise out of conflicting evidence, and findings which are supported by substantial evidence and not clearly erroneous will not be disturbed on appeal. Heldenbrand v. Stevenson, 10 Cir., 249 F.2d 424. Where the evidence is such that reasonable persons might draw different inferences, appellate courts will not substitute their judgment for that of the trial court. Wunderlich Contracting Co. v. United States, 10 Cir., 240 F.2d 201, certiorari denied 353 U.S. 950, 77 S.Ct. 861, 1 L.Ed. 2d 859. It seems to us to be too clear for argument that the evidence is sufficient to sustain the finding that the truck which passed the pickup truck on a hill and as it approached a curve was that of the defendant Wilsey-Bennett Trucking Company. 3 Frost identified the truck as the one he had seen a short time before in Roswell with defendant’s name painted thereon. The driver of the truck testified that he passed over the highway in the area where the accident occurred during the afternoon, but did not recall passing a pickup truck or meeting an oncoming truck while he was in the process of passing. He did not know that the two trucks had collided. The ownership of the third truck, as well as what acts of negligence, if any, contributed in causing the accident, were *148 typical questions of fact to be resolved by the trial court. The fact that the Wilsey-Bennett truck did not actually collide with either of the vehicles or that the driver did not know that a collision had occurred, would be immaterial if his negligence in passing a vehicle on a hill and when approaching a curve was the proximate cause of the collision. United States v. First Sec. Bank of Utah, 10 Cir., 208 F.2d 424, 42 A.L.R.2d 951; Fairchild v. Dean, 198 Wash. 1, 86 P.2d 271; Beach v. Minkley, 302 Mass. 228, 19 N.E.2d 20; Cf. Rozzen v. Blumenfeld, 117 Cal.App.2d 285, 255 P.2d 850, 854; 5A Am.Jur., Automobiles and Highway Traffic, § 239; Annotation 62 A.L.R. 1181.
It is contended that the damages awarded Frost were excessive and not established by the evidence. To this we do not agree. There was evidence to the effect that the trailer was in good condition and that trailers of this model were at the time selling in New Mexico at a price of from $2,500 to $4,000. The purchase price of the trailer during the preceding year was $2,727, and it could not be replaced for less than $2,500. The estimated cost of repairing the trailer and restoring it to its former condition was $3,154; its salvage value was between $500 and $700. The $2,250 award was well within the range of these figures.
Finally, the defendant urges that the evidence shows that Hall was not the owner of the truck driven by Bryant. There is some confusion as to the record ownership but the evidence discloses that Hall bought the truck in the name of the defendant Pike and it was financed in the latter’s name. Bryant apparently did trucking for Hall and he purchased the truck from Hall on a conditional sales contract, using Pike’s name. Bryant made the required payments to Hall only until the time of the accident. Thereafter Hall continued to make payments, totalling $4,314.36, to the finance company. The record indicates that Hall was in possession of the trailer and had made arrangements to have it repaired for a total amount of $1,238.89.
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275 F.2d 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilsey-bennett-trucking-company-a-corporation-v-a-w-frost-and-m-k-ca10-1960.