*1 Lucy Blynn MARSDEN and Jack
Marsden, Appellants, PATANE, Appellee.
Sebastiano O.
No. 22521. Appeals
United Court of States Fifth Circuit.
April 13, 1967. *2 Gaines, Beggs, Daniel, Lane,
Robert P. Davis, Pensacola, Fla., ap- Gaines & for pellants. Mitchell, Holsberry, H. Em-
Wilmer manuel, Sheppard Mitchell, Pensacola, & Fla., appellee. RIVES,
Before THORNBERRY AINSWORTH, Judges. Circuit FOR OPINION ON MOTION REHEARING. THORNBERRY, Judge: Circuit Upon orig- opinion reconsideration the inally rendered in this cause Court hereby withdrawn, and it is ordered following opinion be entered: judgment appeal This is an from a following a the district damages only on the issue of in an ac- wrong- brought by appellee tion for the ful death of his minor result- ing from an in the automobile accident City Pensacola, Florida. The court granted appellee’s motion for sum- mary judgment appel- on the issue liability upon deposition lant’s based together affidavits appellee auto- and the driver of the daugh- appellee’s mobile which minor ter had at the time of the accident. forming the
The record
basis
summary
the trial court’s rendition of the
judgment
following
reveals
undis-
puted facts. On the afternoon of Novem-
22, 1963, appellant
proceeding
ber
north on Fourteenth Avenue
City
Pensacola,
residential area in the
of these
On the basis
driving
owned
Street.
in an
alone
automobile
granted appellee’s
Appellant
motion
husband, co-appellant.
was district court
the issue
traveling
an-
a block behind
half
about
appellant’s liability.
approximately
At the
speed of
at a
other vehicle
damages
followed, the
approached
which
the issue of
an hour as she
25 miles
in its
to include
and court directed the
Avenue
of Fourteenth
intersection
*3
by
of her
the funeral
incurred
ahead
verdict
The vehicle
Blount Street.
appellee.
with-
proceeded
the intersection
appellant
neared
but as
out
urge
appellants
appeal,
two
On this
automobile,
an
noticed
she
intersection
First,
grounds
that
for reversal:
daugh-
appellee’s minor
the one in which
entering
erred in
trial court
traveling
passenger,
east on
ter was a
appellant’s lia-
of
on the issue
approaching the intersec-
Blount Street
bility ;
secondly,
erred
the court
that
Appellant
appellant’s
at
from
left.
tion
instructing
an
include
in
to
approach-
first
assumed that
vehicle
expenses in the dam-
for funeral
amount
ing
would
left Blount Street
from the
ages
conclude that
verdict. We
thought
yield
had
she
because she
correctly
applicable
law the court
Florida
realizing
right-of-way,
upon
but
summary judg-
granted
the motion
going
stop
she
was not
other vehicle
allowing
erred in
ment but
applied
It was too
brakes.
late
expenses.
funeral
collision,however, and the front
avoid the
right
appellant’s vehicle struck the
I.
appellee’s
in
rear of
vehicle which
56(c)
Federal
Rule
passenger,
deceased
was
provides
shall
Rules
that
up
speeded
to clear the
had
which vehicle
summary judgment
enter a motion for
only
impact
As a result
intersection.
depositions,
pleadings,
an
if the
appellee’s deceased
the vehicle in which
daughter
interrogatories, and admissions
swers
overturned,
riding
was
was
affidavits,
together
if
on
any,
with the
file
throwing
Two
from the vehicle.
the child
genuine
is no
that
there
reveal
days later,
hospital
in
the child died
and that
fact
issue as
material
injuries allegedly
sustained
judgment as
moving party
is entitled
further . reveals
accident. The record
general
Moreover, as a
a matter
law.
stop
plain
that
was located
view
negligence,
res
proposition,
issues of
facing
Blount
at the
Fourteenth Avenue
requires application of
olution which
appellant
intersection, and
Street
all the
standard
the reasonable-man
sign, apparently
had run that
susceptible to
facts,
ordinarily
are
Moreover,
failing to
it.
there
observe
g.,
summary adjudication. E.
John
St.
sign facing
Co.,
was no
Blount Street
5th Cir.
Amsterdam Cas.
New
intersection,
328;
1966,
327,
Me
at the Fourteenth
Gauck v.
Avenue
357 F.2d
437;
433,
proceeding
leski,
1965,
and vehicles
on Blount Street
F.2d
346
5th Cir.
right-of-way.
1963,
Watson,
is
F.2d
therefore had the
There
5th Cir.
Stace v.
generally
715,
no
Prac
evidence
the record which would
Federal
See
(Wright
of the automo-
ed.
indicate that
driver
1232.1
tice & Procedure §
daugh-
appellee’s
Moore,
1958);
bile in which
deceased
Practice
Federal
up
negligent.
bearing
ter
awas
was
the facts
Even where
[42].
admitting
undisputed,
deposition
negligence
While
in her
issue of
on the
sign,
case,
she ran the
further
reasonable
if
as in the instant
stated that she was unfamiliar with the
conclusions
reach different
minds could
city
area of
in which the accident oc-
issue
such
and inferences from
curred,
of her
fact.
that the vehicle
front
trier of
must
to the
be submitted
stop sign,
Looking
law,
had run the
and that her atten-
of Flor
the courts
to state
tion
distracted
the automo-
traf
ida
ruled that
violation
have
negligence per
mere-
bile
from the left on Blount
fic
is
se but
law not
ly
negli-
prima
negligence,
contributory
facie evidence
tion
evidence
gence
part
and that
it is therefore
the role of
other driver.
prima
then,
stage,
presented
to determine
whether
At
this
we are
negligence
prima-facie
facie
evi
overcome
lia-
with a
case for
classic
existing
bility undisputed
dence
facts and circumstanc
—
Co.,
g.,
Culp
proximate
es. E.
Gudath v.
Lumber
facts
cause. The
Fla.1955,
846;
742,
tending
prima-facie
81 So.2d
53 A.L.R.2d
li-
to controvert this
375;
Sumner, Fla.1954,
ability
Clark v.
72 So.2d
for failure
are the three excuses
458,
Hooper,
ap-
Allen v.
Fla.
set forth
observe the
Thus, proof
pellant’s
(1)
traffic law
deposition:
So.
of a
that she
(2)
surroundings;
violation is
of the issue
not conclusive
unfamiliar
*4
negligence
may
by
by
be
evi
the
but
rebutted
that
attention was distracted
surrounding
(with
dence
circumstances
vehicle
from her left
tending
collided);
(3)
ultimately
to
eliminate the character
and
which she
City
negligence
Bryant
from the act.
v.
a
of her
that
vehicle one-half block ahead
Tampa, Fla.Dist.Ct.App.1958,
sign.
stop
100 So.
had run the
We are
665, 667;
Rucks,
2d
Fla.
see Allen
even
firm conviction that
these
Dist.Ct.App.1960,
aggregate,
So.2d
taken in
are insufficient
the
generally Prosser,
(3d
See
ed.
Torts §
as a matter of law to exonerate
1964).
however,
concepts,
no
liability. Clearly,
These
in
from
unfamiliar-
one’s
appear
driving
ity
manner
inconsistent with
with
in
the area
which he is
principle
negligence
that even issues
appear
would
to
he maintain
dictate that
susceptible
disposition
are
diligent
nor-
an even more
lookout than
exceptional
in
mally.
those
where reason
Secondly,
cases
find
we are unable to
men, viewing
light
theory
able
in
the facts
a
merit
in
one who
the novel
that
defendant,
clearly
most favorable to the
could
runs a
and
visible
reasonably
prima
non-negli-
not
infer
facie
collides
a
which is
with vehicle
showing
negligence
gently exercising
right-of-way may
been
has
success
its
be
Hofheinz,
fully
by alleging
rebutted.1 See Parker v.
excused
that he was distracted
Fla.Dist.Ct.App.1966,
367, and
by
very
vehicle,
So.2d
that
he mistaken-
which
Neg
therein;
cases discussed
65A C.J.S.
ly thought
duty
yield.
to
Final-
had the
ligence
This,
conclude,
252d.
is
we
§
reject
ly, we
the contention that reliance
Appellant admittedly
such a case.
ran
upon
operator
of a vehicle one-half
sign
plainly
a
a
visible
similarly
to ob-
block ahead who
failed
day
clear
and as a
result
thereof
direct
sign
legitimate
a
serve
constitutes a
ap
collided with the
in
vehicle
which
committing
excuse
stat-
the identical
pellee’s daughter
was a
with
utory violation. To
to the fore-
attribute
over,
such force as
turn
going
to
it
throw
dignity
from
of evidence
facts
out,
child
jury
cause her
In
reasonably
death.
addi
a
could
which
exonerate
tion,
any allega-
negligence
prima
the record is
barren
one
facie
aris-
“prima
A review of the Florida
in this
decisions
sufficient
facie”
overcome such
subjects
negligence
area indicates
that
the state courts have
an
him to
risk of
language “prima
peremptory ruling.
viewed
facie evidence
adverse
See Parker v.
negligence”
giving
infra,
Hofheinz,
as
to a manda
rise
and cases discussed there-
tory
permissive presumption
If,
hand,
“prima
rather
than
in.
on the
negligence.
McCormick,
negligence”
See
Evidence
facie evidence of
created
(1954).
proof
Accordingly,
proof
§ 308
a
that
of a traffic
law violation were
merely
permissive
presump-
traffic law
is
has
violated
a
viewed as
negligence
accept
tion,
jury
freely
sufficient
to take the
issue to
which
could
places
reject
but further
under
or
in
re-
even
the absence
duty
evidence, every
involving
an affirmative
to return a verdict of
buttal
case
negligence
statutory
necessarily
absence of introduction
would
re-
violation
quire
of sufficient
the violator
submission for the courts would
presumption.
powerless
such
rebut
Failure
be
direct a
or enter
verdict
summary judgment.
violator
to come forward with evidenco
previous decisions
court, rejecting
clearly
ing
failure to observe
from the
contrary,
that:
declared
effectively
elimi
would
visible
summary adjudication,
utilization of
nate
recov-
(1)
cannot be
Funeral
brought
the direction of a ver
or for that matter
action
in an
ered
every
involving
dict,
case
violation
Act,
Wrongful
§
Death
§
Fully cognizant
surviving
of a Florida traffic law.
by a
768.02 [Fla.Stat.Ann.]
great majority
of motions
that
dependent.
spouse,
child
summary disposition properly perish in
representative
re-
(2)
personal
can
A
negligence actions,
con
we nevertheless
expenses in a survival
for funeral
cover
that the Florida courts would
clude
Fla.Stat.,
45.11,
brought under
action
§
controversy
pro
instant
invoke
F.S.A.
imply
is
cedure. This
not to
* *
*
pow-
Furthermore,
(3)
ut
courts should not
to exercise
continue
administrator
is
in an
er
inherent
summary disposition
most caution in the
expenses,
of funeral
sue
proceed
nor fail to
issues
legally
pay
them
bound
since he
in
the facts or reasonable
where
from estate funds.
slightest
ferences
therefrom
pronounce-
conformity
In
this recent
Nevertheless,
doubt.
are convinced
we
Court,
Supreme
we
ment of the Florida
atypical negligence
cases
*5
those
appellee
compelled
to rule that since
scrutiny
us,
such as the one before
where
ex-
of funeral
failed
seek
moving
opposing papers
of
the
clear
representative
penses
personal
as a
ly
complete
of a
demonstrates the
absence
or
an ad-
Florida
statute
as
the
survival
genuine
issue as to
fact
material
estate, but
ministrator
of
deceased’s
the
bearing upon
liability,
of
issue
for
his claim
rather elected
base
should,
trial court
for
of both
the benefit
Wrong-
damages
provisions
of the
parties
court,
as well as the
eliminate the
Act,
768.01-
ful Death
Fla.Stat.Ann.
§§
unnecessary expense
delay
of further
instructing
.03,
trial
erred in
court
litigation by
summary adjudica
means of
jury
expenses
the funeral
to include
Ulen,
Airlines,
tion. See American
Inc. v.
court,
damages. The
as an
element
1949,
529;
D.C. Cir.
186
Ins.
F.2d
Home
uncertainty
however,
recognizing
Hamilton, E.D.Ky.1966,
Co. v.
253 F.
issue,
regard
or-
state
to this
law with
752;
Supp.
Biddle,
ex-
Block
W.D.Pa.
dered
funeral
v.
amount
penses
designated
specifically
1965,
as a
426; Elasky
Pennsyl
be
36 F.R.D.
v.
damages
separate
item
the verdict.
R.,
F.Supp.
1962,
vania R.
N.D.Ohio
215
case,
being
This
that amount can be
25; Belinsky
Restaurant,
v. Twentieth
pursuant
eliminated
to our decision with-
412;
Inc., S.D.N.Y.1962,
F.Supp.
207
upsetting
out
the remainder of the ver-
Becker, E.D.N.Y.1961,
Baroff v.
F.
197
dict.
Supp. 9.
Accordingly,
exception
of that
portion
judgment awarding
II.
funeral
expenses
appellee,
reversed,
which is
Appellant’s
specification
second
judgment
hereby
trial
court
improperly
of error is that
affirmed,
appeal
all costs of
taxed
be
directed the
to include an amount
against appellee.
expenses
funeral
its determination
damages
Although
Florida
issue.
RIVES,
Judge (dissenting):
Circuit
question
law
of re
was uncertain
covery
my opinion
entry
date
In
funeral
at
argu
presented
plaintiff
this
for the
case was
oral
denied to the
ment,
Supreme Court,
right
Florida
in a
defendants their constitutional
to a
opinion,
jury.
recent
In
has clarified the law
the federal courts that
right
Refining
this
In
v.
is to
area.
Sinclair
Co.
be determined as a matter
Fla.1966,
313, 319-320,
diversity
Butler,
federal
law
as
well as
So.2d
testimony
Conner, 1963,
opinion
that would not
ad-
actions.
v.
372 U.S.
be
Simler
221, 222,
609,
Rule
constituted the There nothing else to warn a motorist of the
necessity approach such as
warnings apparent of a or dif- ahead MARCELLO, ferences of Vincent Sadie Marcello width use the streets. al., Petitioners, et Mrs. Marsden had driven on Fourteenth stopping Street without for several blocks getting before Boni- the intersection. REV COMMISSIONER OF INTERNAL fay, ENUE, Respondent. the driver of the on Blount car Street, stopped four-way stop at a No. 23151. sign just two blocks before the collision. Appeals United States Court of Mrs. Marsden was Fifth Circuit.
Bonifay’s right and, seeing 16, June sign, she assumed until too late that she Rehearing Aug. Denied right way. had the She testified that watching, “I had been since there was *6 directly one car in front of me and since appeared
it exactly to know where it was going.” proceeded through That car
intersection without and Mrs. attempted following Marsden to continue it. When the had been erected generally
and whether it was observed appear. does Under all cir- cumstances, simple Mrs. Marsden’s fail- not, ure to see I does sub-
mit, present such a conclusive com- pelling inference as that no reasonable man could find to con-
trary.
I doubt also whether there was
competent evidence the collision
caused the death. There was no medical evidence. Mr. Patane’s affidavit stated “ * * * that his died No- 22, 1963, injuries vember received by her in an automobile collision Novem- * *
ber The evi- severity daughter’s
dence as to the of his
injury Bonifay’s contained affidavit
that she “was thrown from the car and
seriously injured and The later died.” competent
affidavits are not