The opinion of the court was delivered by: John E. Miller, District Judge.
This case was tried to the Court without a jury on October 10
and 11, 1956, and at the conclusion of the trial the Court took
the case under advisement pending receipt of briefs from the
parties in support of their respective contentions. The briefs
have been received, and the Court, having considered the
pleadings, evidence, stipulations, and briefs of the parties, now
makes and files herein its findings of fact and conclusions of
law, separately stated.
The plaintiffs, Edith Keene and Wallis Keene, are citizens and
residents of the State of Texas, and the plaintiffs, Emilie
Milner and M.B. Milner, are citizens and residents of the State
of Oklahoma. The defendant, George Enterprises, Inc., d/b/a
Jimmie Lynch Death Dodgers, is an Ohio corporation. The amount
involved, exclusive of interest and costs, exceeds the sum of
On June 13, 1956, at approximately 8:30 a.m., the plaintiff,
Wallis Keene, was driving a 1956 Buick in a westerly direction on
U.S. Highway 82 at a point about two miles west of the town of
Montrose, Arkansas. Mr. Keene's wife, Edith Keene, and his
sister, Mrs. Milner, were riding with him in the automobile which
was owned by the plaintiff, M.B. Milner. Mr. and Mrs. Keene and
Mrs. Milner had been to Lake Providence, Louisiana, to attend a
funeral and they were returning to the Keenes' home in Wiley,
Texas, on the morning in question. They were using Mr. Milner's
car since it was air conditioned, while Keene's car was not.
It was raining, but visibility was good. The highway was what
is generally known as a "black top" highway.
On the same morning defendant's employee, Bobby Pittman, was
driving defendant's 1956 Dodge in an easterly direction on U.S.
Highway 82. This Dodge automobile was a part of a convoy which
included several trucks and automobiles owned by the defendant.
Pittman's position in the convoy was behind a pickup truck owned
by defendant, and defendant's drivers had been instructed to keep
at a distance of 300 feet apart when traveling.
Immediately prior to the accident defendant's driver, Bobby
Pittman, was driving defendant's Dodge at a speed of
approximately 45 miles per hour. He had been following behind
defendant's pickup in the convoy, but about a mile and a half
before reaching the scene of the accident, the black Chevrolet
mentioned in Finding of Fact No. 4 had pulled out of a side road
and was proceeding in front of the Dodge being driven by Pittman.
As Pittman approached the "Y" he was following about 100 feet
behind the Chevrolet and was driving at a speed of approximately
45 miles per hour. When the Chevrolet slowed down, Pittman
applied his brakes and the Dodge he was driving skidded to the
left on the wet pavement. When Pittman saw the Buick coming
toward him, he attempted to drive on across the highway and onto
the north shoulder, but, as heretofore stated, the Dodge and
Buick collided head-on in the north lane of the highway.
Defendant's Dodge was traveling at an angle across the highway,
and the primary point of impact occurred between the right front
of defendant's Dodge and the right front of plaintiff's Buick.
The collision occurred about 300 feet west of the "Y".
Plaintiffs' automobile had already gone around the curve, and the
collision occurred on a straight stretch of highway.
After the impact defendant's Dodge was still upright and was at
an angle, with the right rear wheel still on the pavement and
most of the vehicle on the north shoulder. Plaintiff's Buick also
remained upright and was on the pavement in the north lane of the
highway, sitting at an angle with the front end toward the north
After the collision Keene went around to the other side of the
Buick and helped his sister, Mrs. Milner, out of the car. She was
stunned and lay down on the pavement. Her face and mouth were
bleeding profusely. Mrs. Keene, who had been riding in the
middle, attempted to get out of the car but was unable to do so
because of her leg. Her nose and mouth were also bleeding. It was
about 45 ...