*2
DOBIE, Circuit
PARKER and
Before
WATKINS,
Judge.
District
Judges, and
DOBIE,
Judge.
Circuit
Brooks,
Welker Brooks and
as Ad-
James
Brooks,
ministrator of the Estate of Arthur
deceased,
civil
filed
actions
the United
States District Court
the Western Dis-
Carolina, against
of North
the United
trict
States under the Federal Tort Claims
seq.
28 U.S.C.A.
921 et
The District
Judge, sitting
jury,
judg-
without
entered
ments
in favor of
United States
Brooks,
Welker
Admin-
Brooks
James
the Estate
istrator of
of Arthur Brooks.
appeal
The case is before us
judgments.
United States
p.
About 8 m.
February
Wel-
Brooks,
ker Brooks and Arthur
both en-
Army,
listed men in the
father,
civilian,
driving
their
their
highway
automobile on a
PARKER,
dissenting.
Judge,
Circuit
Fayetteville,
near
North Carolina. Both
furlough, engaged
were on leave or
in their
concerns
and not on
connected with
business
serv-
Brooks
automobile
ice.
collided with
truck,
Army
operated by
a civilian em-
ployee
Department,
of the War
which was
transporting
members
Bragg
of a Fort
Fayetteville.
band to
Arthur Brooks was
Brooks
and Welker
was seriously
killed
jured
collision,
a result of the
Judge held
negli-
District
due to the
gence
Army
driver of
truck.
only
we are called
to decide whether Welker Brooks and
Brooks,
IV,
as Administrator of
Claims Act is
said
“To
Title
to be:
James
Brooks, deceased,
provide
legis-
Estate
of Arthur
for increased
efficiency
against the
lative branch
Con-
the Government.”
*3
provisions
gress,
Act.
years,
of
Tort Claims
many
plagued
the Federal
for
been
an-
by
We think
private
the District
with a
of
author-
erred
veritable flood
bills
swering
money
in-
izing
payment
this
the affirmative.
personal
the
for
of
juries
by
damage
caused
interpretation
problem
This
statutory
of
employees
tortious
the Unit-
conduct
of
of
primarily to the
difficult,
close and
due
appreci-
ed States. These
consumed an
bills
inept draftsmanship
Congress
part of
portion Congressional
able
of
and ener-
express pro-
in failing make
and
clear
gy.
Congress,
organiza-
And
its size and
vision
States
soldiers
the United
as to
tion,
pass
ill
fairly
fitted to
Army.
Legislative Reorganiza-
of
bills.
131
§
crystal
clear that
seems
specifically
the in-
Act
1946
tion
of
forbids
literally
within
suit fall
claims here in
private
for claims
troduction of such
bills
comprehensive
“any
words
falling'
Act.
ambit of
within the
only”
States,
money
used
the United
civil-
relief of
While
bills
specific
any
without
410(a)
of
exceedingly rare
legion,
ians were indeed
persons who
of
as to
classes
limitation
very
such bills for the
far between were
and
fact,
Act.
have
claims under
valid
men in
services. In
relief of
the armed
of
however,
determinative
is not
itself
connection,
following
note the
ex-
may
we
approach, we
proper
The
problem.
our
Report
page 31,
at
No.
statement
planatory
admirably
District
think,
stated
Cong.,
sess.),
1400,
(79th
2d
on S. 2177
Ghesnut,
v.
Jefferson
Legislative Reorganiza-
which became the
“It
States,
F.Supp.
D.C.,
712:
77
expansion
of
of 1946: “With
statutory construction
rule of
familiar
is a
years,
governmental
activities in recent
reading
particular
of
merely literal
that the
important
grant
especially
becomes
by con
can be narrowed
an Act
words in
sue the
individuals the
where,
subject
whole
from the
struction
respect
Government in
to such torts as
setting
Act and
particular
its
matter
operation
negligence in
vehicles.”
scheme, the
governmental
in the whole
(Italics ours.)
import of the
literal
that the
court can see
policy
soldier, upon
contrary
enlistment,
to established
phrase used is
ac
quires
special
unique
status,
accord with
real intention
and
and
quite
any
for this
passing the
and
different
Congress
relation between
Federal
may ‘look to
Government
purpose
and civilians.
we
inquire
its antecedent United
and
into
Standard Oil
of Cali
enactment
v.
Co.
fornia,
305,
301,
1604,
332
give it effect in accordance with
U.S.
history
S.Ct.
2067;
sacrificing,
Morrissey,
157,
neces
design
purpose,
if
L.Ed.
re
137 U.S.
meaning
57,
order that the 159,
644;
literal
sary, the
11 S.Ct.
L.Ed.
In Grim
re
may not fail.’ Takao
v.
purpose
Ozawa
54,
ley,
147,
11 S.Ct.
U.S.
jury soldier, 3, 38, no “Chapter or a it has made Code, death of Title United States injuries 151-206, distinction received while a 38 provides between an elabo- §§ leave, furlough system was on and in- pension personal soldier or rate injury for juries received a soldier while active loss of life officers incurred and enlisted duty. If the or disease is incurred navy. men in the pensions These may be during period service, inadequate his substitute for service-connected, compensable, recovery damages of full under the Public though not service-caused. The fact even 3, 1925, Vessels Act of March they but payments were made the United well known all to who entered the naval * * * States on account of the death Arthur pur- service. If it had been the Brooks, injuries L. of his brother pose change policy respects offi- Welker, practice shows the where the injured cers seamen of the navy soldier on leave. public vessel, a unseaworthiness of or another, the fault of one because that is statutes, cognate Congressional In where- to, what in the end it comes we cannot think in the United States tradi- has waived its it would have general been left to such immunity claims, tional suit tort language as is found in the above- been judicially these statutes have inter- * * * quoted section 1. preted inapplicable to members of Thus, the armed services. Vessels Public “We believe that meant seq., 46 U.S.C.A. et authorized: leave members naval forces * * * personam “a libel the the same risks suffered in * ** caused service they United States as by * * vessel of the United before.” yet held that there was Bradey v. United Cir., against the United States for no claim F.2d certiorari denied 326 U.S. Speaking naval officers. 484, 795, 483, 90 L.Ed. S.Ct. rehearing Court, Judge Swan, Circuit unanimous 880, 1348, denied U.S. 90 L. States, Cir., Dobson v. 27 F.2d 1647, Ed. Circuit Learned Hand 807, 808, 809, certiorari denied 278 U.S. stated: 179, 49 S.Ct. used quite “It is true that nothing in the text language: trenchant the Public Vessels Act bars suit “Verbally, nothing there which ex- forces, member but armed in Dobson cludes States, Cir., F.2d cer- * * * or crew. person of officers tiorari denied 278 U.S. 49 S.Ct. that, “Nevertheless construction we held contended because of the appellants involves so radical a de- provided elsewhere for such persons, they must excluded from purely place he deemed stated terms protection. directly (whoever may That case rules claim), make the the locus here-; succeed, and, delicti, the libellant must foreign country.” —“a prevail upon us overrule it. she appellees This contention of attempts ground do sound, question, if judicial course of decision since then dis- Thus, would to rather lead fanciful results. change closes towards attitude exception, under the first soldier killed or sufferers. injured important perilous com- bat
“We can
such a
activities of war
a re-
find no evidence of
denied
covery;
perfect
change, nor
rea-
while there
do we see
antecedent
would be a
injured
wrong
for the soldier
son to think
before.”
that we
killed
non-combat activities. Under
second
See, also,
Point, D.C.,
F.
The West
exception,
injured
for a
killed
soldier
Supp. 206, 212.
Canada,
recovery;
while
stationed
manner,
In like
under the Railroad Con-
injured
Plattsburg,
for a
or killed at
soldier
trol Act of
40 Stat.
York; just
New
a few
miles
rail-
Federal Government
controlled
border,
recovery.
again
It is
Canadian
*5
roads,
injured
it was
a soldier
held that
difficult
us to think
intend-
that
operation
negligent
had
of a railroad
Federal
ed such
results to flow from
against
no valid action
States.
United
Tort Claims Act.
Davis, D.C.,
56.
v.
288 F.
See
Sandoval
precise problem
on
authority
Judicial
421, 428, 42
also,
Davis,
Dahn
258 U.S.
v.
know,
very
before
As far
us is
as we
scant.
320, 66
696.
L.Ed.
appellate
court
decided
federal
States,
question.
Troyer
v. United
Appellees
fact
make much of the
F.Supp.
against
the action
specific
contains certain
ex
that the Act
was dismissed
the United
ceptions
the United States.
States District
for the
Dis-
Court
Western
expressed
these
argued
it is
From this
leading
case seems
trict of Missouri.
implied ex
negative
exceptions
States,
decided
to be
United
Rose,
ceptions. Moore Ice Cream Co. v.
Jefferson
District
Chesnut in the United States
373, 377, 53 S.Ct.
289 U.S.
Maryland.
District
for the District
Court
1265;
Steamship
Mellon,
Cunard
Co. v.
him, 74
When this case first came before
100, 128,
43 S.Ct.
262 U.S.
F.Supp.
Judge Chesnut
without
denied
1306;
Williams,
Lapina v.
894, 27 A.L.R.
dismiss;
prejudice
motion to
but when
8á5 amended, Veterans' greater readily World War admit the added We recovery ours.) Act (Italics 1924.” denying where reason for (the is service-caused Jefferson this section Thus careful reading injury is serv- case) than where the exclude soldiers shows that did not easy (the case). It is present ice-caused class from the the Act. benefits of results, in- up conjure the unfortunate merely excepted un- (in claims addition to military disci- cluding subversion of Employees’ Compensation der the Federal n pline, if could sue soldiers “Any seq.) et U.S.C.A. § injuries incurred provided being of their * armed service * * by War Veterans’ World country. for such If could sue soldiers seq.],”— of 1924 421 et [38 alleged illness based is, merely compen- solely company negligence or mess cook single Congress, sable sergeant, sick- or if who contract World War Veterans’ Act 1924. sentry duty ness wintry certainly arguable Congress, It is action on the al- Government finally when this considered legation negligent given of a order rejected, must have been familiar with company commander, the traditional then so, Bradey If Dobson cases. grousing would of the American soldier Congress did include intend result in devastation of disci- scope every within the dictate pline and morale. require of common sense seem to would However, opinion, read his we manifest inten- cogent powerful reasoning but, implication inference or *6 applicable regard- Chesnut is to soldiers important matter, by pos- on emphatic so a injury less or whether not the is serv- of expression effect, itive in words ice-caused. And Claims the Federal Tort they readily so clear that could be under- Act, it, as interpret either we excludes stood, judges. even federal So radical (subject, course, express of excep- to the departure a previous policy from and tions) altogether completely soldiers certainly should have been ex- includes them. quite areWe unable to pressly stated not left to inference. and find in the jus- Act anything which would been, might too, well that Con- tify in holding us intended gress, of aware the considerations ad- of, injury to, soldier, include death thought (as in opinion do)we vanced this which was not (the service-caused instant form, Act, ap- that the its final did in case) and to exclude injury service-caused ply to soldiers. or death (the case). Jefferson Chesnut, opinion his Our attention is called the faot that case, D.C., F.Supp. page at Jefferson early an draft of the Federal Tort 712, problem “The stated: here made Act (H. Mr, R. Claims introduced .fact, more difficult reason of the as Celler) express there exception was opinion case, noted the previous .in in this soldiers, with reference to and Act was Act, that section 28 U.S.C.A. finally enacted exception. without this types contains of numerous § argument is made that Congress, excepted coverage which are of exception brought with this to its atten- which, however, Act, none include of tion, deliberately omitted exception situation, although instant prior in a from final draft of it must proposed general the same pur- for fairly be Congress clearly inferred pose, exception. was there included such an intended to include Nevertheless, stated, within previously soldiers as reach I ¡the scope of the Act. implied exception conclusion that (Italics ours.) does exist in this case.” omitted (H. sec- R. tion 402(8) reads D.C., “Any F.Supp. as follows: Again, page at for which Chesnut, is provided by referring to “Senate Employees’ Compensation Federal Report and also in House No. n Committee Au- said: Act of Report July under the Federal Claims 1946” Tort of gust stated 60 Stat. again commenting “And ad- in. sec- soldier and appearing were exceptions to the 921. Plaintiffs ministrator of deceased soldier it said that was were Army. 'certain The claims relate to United States include ‘claims which injuries re- governmental should be on account activities which suits, for the death ceived the soldier and free from threat of already resulting avail- the adequate deceased soldier which remedies ” employee of the negligence a civilian able.’ army operation anof quote And another statement we furlough were truck. The .two soldiers opinion, his Jefferson father, civil- riding and their were F.Supp. page 714: ian, on a automobile in a emphasizes par- strongly “The case engaged highway were government-soldier rela- ticular nature army serv- business connected with sup- strong tionship and this furnishes the collision found that ice. The trial court in- port not the view that was injury one of the which resulted passing the Tort tention was due the death of the phrase ‘any Claims Act include in em- solely civilian negligence to the n claim’-those -by for serv- former soldiers ployee operat- who was the United States there which ice-connected disabilities army ran into ing the the auto- truck which body already large fed- existing riding. Judg- they mobile in legislation. eral soldier ments favor of the entered in may “Again that section noted $4,000 plaintiff damages on account respect provides 410(a) also of the ad- personal in favor ‘Subject test of follows: soldier for deceased ministrator of provisions title, $25,000 wrongful account claims, liable in damage. $425 claimants, in same man- the same of the two father ner, extent, same jured collision a result the same individual like circumstances’. *7 damages; no $5,000 but he awarded was inept if seemingly phraseology is “This judgment that appeal taken was Congress intention 'had been the of appeals before on the no is raised give redress for serv- soldiers additional the District finding as to the us of hardly It is con- ice-connected disabilities. negligence. con- question of The on the liability analogize the ceivable to re- is that tention of the States United indi- United that of States must covery Claims under the Tort dis- vidual in to service-connected and the adminis- be denied the soldier government-soldier abilities the of view soldier the trator of the deceased relationship.” particular arising of the in- ground claims out killing is not cov- jury of or of soldiers advanced in this the reasons For conten- ered the An alternative opinion, Tort Claims act. we think the Federal precluded of is that apply plaintiffs are does not to claims soldiers tion recovery mother of the de- Army, the even when because in the United gra- out soldier was awarded arise of death ceased those claims or existing and the here, tuity of which, are service-caused. under law $468 per granted injured was judgments $27.60 in favor of the soldier Both the compensation by disability the Vet- plaintiffs-appellees in the District Court month must, therefore, account the be reversed. erans Administration received. he had
Reversed. question in is principal The the case PARKER, (dissenting). Chief read into the act whether court the exception excluding appeals soldiers from the These States an United provisions. I judgments in favor of claimants to recover under established, acts whose for such reading see basis July repeals the act of 424(a) matter section Legislation into the act. 223<b), lan 31 U.S.C.A. court; Stat. Congress, not for the Secretary dearly covers which by Congress authorized guage used against Army neither settle claims soldiers as well as civilians.1 .to $1,000, exceeding respectful Congress for nor reasonable civilian by military personnel or import the caused to assume that the courts army. not reason- employees It is language statute was general used excluding claims assume that of soldiers language able to not understood soldiers was the act were overlooked at time when soldiers from the benefit of rights prominently through The act and so omitted inadvertence. their were mind, prior proposed leg- country passed when was explicitly matter deeply rights and islation dealt was conscious of army repealed legislation the .act itself greatest and when soldiers. grant- history country being de could which limited relief was under many mobilized but .thousands ed them. hundreds of arms, of men still under is not assume that And it reasonable to
hardly probable -that could war, victorious when the at the a' end overlooked the fact on their that claims country grati- heart filled with part general lan would be covered tude achievements their guage Added used. to this fact that battle, -is the would have field prior by Congress considered exclud passed discriminating against bills a statute compensable leading results ed claims them and such absurd World Act;2 presented by bar, as War Veterans it is fair to the case at would be government position sume that these bills their exclusions if the is sus- position case were before draftsmen of this act. tained. too, Then, itself, 402(b), precisely the act that of civil- Sec. expressly They engaged mili mentions members of the ian were not father. tary was, among military duty, riding, naval forces but those he
would damage, acting claims the act or loss of money manner, States ance with the United employment, shall determine, any employee plaintiff uary ute, sonal ligent cluding the daim trict court sions 1 The “Sec. 410. the omission the Territories be liable to the same provisions within or shall only, accruing Stat. pertinent loss, and to the wrongful exclusive and States, the resident or wherein the act States, omission or be complained under 843-844, title, on account injury, the (a) of the United death caused law liable render to the district of or the Government while language scope Subject daimants, sitting the daimant States district courts if dreumstances of act or omission of jurisdiction and or on account of same occurred. on and after is as follows: judgment the death title, of of respect private person, without a *8 possessions occurred, his office place extent of the stat wherein the States, the United the for such the to of Subject accord- on where where provi- to or hear, same jury, Jan- such neg- per- dis- any or of is that and all contained mitted to World into the House to ary House July 21, omission exceptions guage ployee “(8) Any Cong. Compensation Act, Claims shall constitute amended.” endar No. es. same action [2] “(b) provided by the H.R. * 26, 1942, all as section 2d subject matter, introduced House, * * War and ordered to be individual under of gave Sess., daim 392, all the them contained an additional judgment Veterans’ Act of Cong. hereinafter daimant, by introduced into the House practically Government and rise the Committee January H.R. 77 the Federal for which a section Cong. into as were tort complete 1st H.R. following Cong. of amended, Sess., the like the 2d quoted, the same 1945 and of introduced claim.” 1st whose compensation Federal Tort printed setting circumstanc- Sess., bar Senate, claims bills Employees’ Union Cal the Whole introduced language: an action or Sess., the em- except act Janu forth com Nov. lan the in as S. pub privately holding m owned automobile Another that reason for he, civilian, say exclude highway. lic not the To .that .the intention of may recover, they protection hut that must he denied from afforded the merely they twelve recovery the act itself lists because are is that the act exceptions to one certainly application would come under as a shock refinements; excep legal exceptions of heading not familiar and no only i« among tion is them.4 shock he listed Not would alleviated true, (j), knowledge exceptions, that the mother of the deceased but one gratuity expressly military naval awarded been refers any arising injured disability provides man com forces and that claim $468 and pensation of in time per month. would out of their activities combatant $27.60 they act. be that entitled to these of covered not be wa>r shall pension on be benefits under the laws intended If had been military naval is en half of just the seaman members of covered, inclu titled to maintenance cure from his forces should not be vessel, certainly have exception (j) as a sort of accident and health sion would relationship3 express suggested language incident used insurance to the rule purpose.5 applicable fact received for that elementary denying would stated constitute well law to the soldier the more substantial recov citation controlling authorities any ery to civilian he 455-456 follows: p. which entitled Am.Jur. * * “ * express like circumstances. where States, Cir., Any arising (g) v. United See Smith claim crew, jury cargo, vessels, or F.2d 550. act, 845-846, passengers vessels, passing The text of or while 60 Stat. through follows: of the Panama Canal the locks waters, Any provi- “Exceptions. (h) Sec. 421. The or while claim Zone in Canal to— n battery, apply assault, arising sions of this title out (a) upon imprisonment, Any arrest, an act or false mali- based claim false employee prosecution, process, li- of an Govern- abuse of omission the in cious exercising care, bel, deceit, ment, misrepresentation, slander, or due exe- rights. (i) regulation, wheth- cution of a er or contract statute interference with Any regulation statute or or not such claim caused per- valid, operations treasury exercise or fiscal or or based monetary system. regulation or formance or the exercise failure discretionary duty (j) perform Any arising out function the com- or claim agency part naval of a Federal or batant activities of or Government, forces, employee Guard, during or Coast whether arising Any (k) in a involved be war. or not discretion abused. claim arising foreign country. Any (b) arising loss, (1) Any out of the claim claim negligent miscarriage, the Tennessee Val- or transmission the activities of matter, Any ley Authority.” postal (c) or letters language precisely arising assess- any language or contained H.R. 181 ment tax cus- collection or goods duty, any heretofore been exception which reference has made as toms detention of except by any that it omits the of cus- officer or merchandise claims for law-en- toms excise *9 (j) (d) provided Any in the and section inserts officer. claim forcement provided remedy word “combatant” before activities. is which a the Act 5 originally (j) 9, 46, ex (U.S.O., as drawn Section 421 of 741-752, 3, 1920 secs. March title arising any inclusive) out of “activi cluded claim or the of March military (U.S.O., 46, 781-790, ties” of and naval forces or title secs. the 1925 guard during relating inclusive), war. It was claims or suits coast passage through admiralty its amended on Con the in United States. only arising gress arising out (e) Any claims out of act or claim an exclude Cong. any employee activities”, (See “combatant of the Gov- omission showing 10143), provisions administering the thus the Record ernment in expressly Act, Congress Trading Enemy drawn the as mind was with amended, arising Any in (f) liabilities with connection claim imposition forces. naval or establish- and caused ment of quarantine the this is that made, legal title. The difference presumption is essential intend, puts legislature other House maximum limitation did not to save bill n may $10,000 suit operation of the statute. for which cases from reported case, strong be brought, this title In the inference is as whereas by your such limi- exceptions intend- contains no that no other committee one opinion ed, tation. of the generally applied The committee is rule banning exception to an that an amounts a statute view limita- pro- Congress no such application of in the affirmation of claim bills re- that with excepted, imposed, not should he visions to other all cases spect type en- the Government exceptions claim excludes all position as exceptions put be the same largement of made.” should party. For the information of For the rule has been cases which following Senate the statement Rose, applied, Co. see Moore Ice Cream v. report ‘H. House Committee on H.R. 181 Collector, 373, 377, 620, 289 U.S. 1287, Rept.No. sess.), 1st Cong., cov- 79th 1265; Steamship Cunard Co. v. 77 L.Ed. history legislation ering the of this Mellon, 100, 128, 504, 43 S.Ct. U.S. summary incorporated existing law 1306; Lapina 67 L.Ed. v. A.L.R. report:”. part made a Williams, 232 U.S. 34 S.Ct. Wilbert, 515; L.Ed. U.S. Wood v. 181 contained thirteen H. R. 384, 390, 264; Equi- 33 S.Ct. became which section section Society Clements, table Life 140 U.S. was Tort one of which Claims 226, 233, 11 S.Ct. 497. as follows: cited, Court, In Supreme case last compensa- Any “(8) for which Gray, speaking through Mr. Justice provided by tion is Em- Federal gov- construing general terms of a statute amended, Compensation ployees’ as applicable erning policies life insurance by the War Veterans’ Act World court, before fol- had the case amended.”' say lowing regard the effect of exception omitted from was specific prescribing exceptions: section Tort Claims Act when the others were beyond is put construction doubt “This my opinion written as Section 421. 5855], which, section 5986 [Mo.R.S.A. § power to back the court write is without (two specifying four cases which interpretation into an act section relate to policy) in which form deliberately Congress thus omit- preceding the three sections not ‘shall be only ted. excuse an reading The applicable,’ necessarily implies that those by interpretation exception is that Con- control all sections cases not so presumed gress must to have intended specified, form whatever be the exception apply; but that an policy.” presumed could to intend that What seems a conclusive reason for not deliberately exception apply, when sug- reading exception into the act exception upon its struck the from the act however, gested, that this passage. originally tort claims contained act into which was introduced foregoing conclusion answered January and was H.R. omit- by exception in fact that H.R. deliberation, ted, apparent to claims for which related incorporated Tort bill Claims the World provided War Veterans Legislative Reorganization amended, Section 1924 as and not sol- Act of Report Act. See H. R. No. 1400 only argument nomine. ad- diers eo Legislative Reorganization Act, p. excluding vanced *10 30, following appears: language where the provision act is that is made benefit only provision elsewhere. The for them called to the fact “Attention is that there elsewhere, so as com- them far is made House bill (H. now Calendar a concerned, injuries pensation is is in 181, R. Cong.) 79th identical almost with 850 n opinion
n act
Act
1924 as
Since the
World War
C'hesnut.
Veterans
than,
amended;
had be- does
give
more
n-o
to sue
provision excluding
fore
the'government
adopts
it
-claims cov-
-the
-and
law of
ered
injury
this
-as
deliber-
state in
occurred
act
amended -and
which
ately
respect
liability,
legislation
establishing
omitted
from
to
it
-the
passed,
question arises,
inescapable
injury
the conclusion
to an
caused
is
-as
it
-army service,
not
intended
exclude soldiers
under the law
to
whether
any liability
act
is
such
even
to
the state there
benefit
presented
injury.
claims so
an
covered.
No such
is
here;
only ground upon
it
and the
which
government places special
-reliance
negative
in the
does
could be answered
upon the decisions in Dobson v. United
respect
not
which
exist with
to an
States,
Cir.,
Bradey
2
so omitted adopting the text of H.R. 181 when Claims Act. bill as Tort
text of that Richmond, Sands, Va. Alexander H. Richmond, Sands, Jr.,
(Alexander H. Va., appellants. on the brief), Coleman, Fredericksburg, S. Bernard al. et al. v. PAYNE BIZZARO et Gibson, Fredericksburg, & (Coleman Va. No. 5743. Va., appellees. on the brief), Appeals Circuit Court DOBIE, PARKER Circuit Before Fourth Circuit. PRETTYMAN, Associate Judges, July 21, 1948. Appeals Justice, United States Court (sitting by District Columbia for the special assignment).
PRETTYMAN, Associate Justice. Ap- accident This is automobile case. pellees plaintiffs Payne were On below. accident, they day driving Richmond-Washington High- north on the way Ladysmith, distance north of short day rainy, Virginia. The been They right- road wet. highway, hand lane the four-lane top” was “black double white marked with lines in the middle. Appellant-defendant driv- Bizzaros were ing the same road. Mrs. Bizzaro south on approached driving. The two cars long sweeping other on curve. each skid, suddenly Bizzaro car went into a lanes, entire crossed the four turned com- pletely end its rear smashed around, Payne Trial was into the car. had before in a jury, and resulted verdict for the ap- plaintiffs. The defendant Bizzaros pealed. presented question only there was
appeal whether evidence part of either negligence Bizzaros. think there was suffi- We present negligence to evidence of cient jury. That evidence con- speed, car, handling cerned car, condition condition Although the Bizzaros testi- the driver.