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GENTRY v. JETT

June 1, 1959

ALBERT FRANK GENTRY, PLAINTIFF,
v.
CHARLES R. JETT, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

The defendant, Charles R. Jett, has moved the court to dismiss the complaint of plaintiff, Albert Frank Gentry, and for cause has alleged:

1. That the complaint fails to state a claim upon which relief can be granted in that as shown therein the claim of plaintiff is based upon alleged damages for personal injuries received by him in an accident that occurred on June 22, 1958, near Tulsa, Oklahoma, when a truck belonging to the defendant and being driven by the plaintiff collided with a St. Louis-San Francisco Railway Company freight train at a crossing on Oklahoma State Highway No. 11;

2. That on October 3, 1958, the plaintiff filed suit No. 2340 in the Sebastian Circuit Court, Fort Smith District, against the railway company, in which he alleged that the accident was caused and occasioned by reason of the negligence of the railway company; that answer was filed to the complaint by the railway company and judgment was entered against the railway company and in favor of the plaintiff for $4,500 damages; and that said judgment was paid and satisfied in open court.

3. That the action of the plaintiff in filing suit against the railway company as a tort-feasor, in pursuing the same to a judgment, and obtaining satisfaction of the said judgment by payment thereof by the railway company is and constitutes a complete bar to any action upon the same cause or claim against this defendant as an alleged joint tort-feasor.

Upon the service and filing of the motion, the plaintiff moved for and was granted an extension of time to prepare a memorandum brief in opposition to the motion, and in response to the motion of the plaintiff for extension of time the court entered an order on March 4, 1959, allowing plaintiff 20 days "in which to prepare and file herein a brief in opposition to defendant's motion to dismiss."

Upon the filing by plaintiff of such response to the motion to dismiss, the defendant filed a reply to the response, in which he alleged that there had been certain developments bearing on and pertinent to the issue raised by the motion to dismiss which have occurred since the filing of the motion, of which the court should be apprised. The defendant then proceeded to set forth the developments that had occurred since the filing of the original motion. The developments referred to will be hereinafter enumerated.

Fed.R.Civ.P., 12(b)(6), 28 U.S.C.A., provides that the defense of failure to state a claim upon which relief can be granted may at the option of the pleader be made by motion.

    "If, on a motion asserting the defense numbered (6)
  to dismiss for failure of the pleading to state a
  claim upon which relief can be granted, matters
  outside the pleading are presented to and not
  excluded by the court, the motion shall be treated as
  one for summary judgment and disposed of as provided
  in Rule 56, and all parties shall be given reasonable
  opportunity to present all material made pertinent to
  such a motion by Rule 56."

The same provision is made in 12(c), supra, when a motion for judgment on the pleadings is presented.

Fed.R.Civ.P., 56(c), provides:

    "The judgment sought shall be rendered forthwith if
  the pleadings, depositions, and admissions on file,
  together with the affidavits, if any, show that there
  is no genuine issue as to any material fact and that
  the moving party is entitled to a judgment as a
  matter of law."

There is no genuine issue as to any material fact reflected by the record before the court. Thus the question to be determined is whether, upon the record before the court, the defendant is entitled to a summary judgment as a matter of law for the reasons shown in the record. In order to decide the question it is necessary to briefly set forth the contents of the record and, because of the extraordinary developments, the court feels that the contents should be set forth chronologically.

On February 11, 1959, the plaintiff filed his complaint herein, in which he alleged that he is a citizen and resident of the State of Texas, and that the defendant is a citizen and resident of the Western District of Arkansas.

That he, the plaintiff, on June 21, 1958, was employed by the defendant to drive defendant's 2-ton truck, loaded with 150 bushels of cucumbers, to Wichita, Kansas, and return the truck to Wickes, Arkansas, for an agreed consideration of $25; That the plaintiff drove the truck toward Wichita, Kansas, and while thus driving the truck near the city of Tulsa, Oklahoma, and while driving at a reasonable rate of speed, the brakes on the truck failed causing the said truck to collide with a Frisco freight train, and injuring the plaintiff. Then follows allegations of the injuries received.

The plaintiff further alleged that the truck which the defendant furnished him was equipped with defective brakes, and that the defendant had actual, positive knowledge that the brakes were defective and in need of repair, but that the defendant negligently failed and omitted to have the needed repair work done; that the nature of the brake defect was such that it could not be discovered by inspection by the plaintiff; that the defendant, although knowing that the brakes were defective, wholly failed, neglected and omitted to warn the plaintiff of the hidden defect in the brakes, and "that the negligence of the defendant in failing, neglecting and omitting to warn the plaintiff of the defective condition of the brakes was the sole, direct and proximate cause of the accidental injuries sustained by the plaintiff."

The plaintiff prayed judgment against the defendant for a sum in excess of $10,000 for damages for personal injuries, loss of time, medical expenses, pain and suffering, and personal disfigurement.

Upon the service of summons issued on the complaint, the defendant filed his motion to dismiss as heretofore set forth, and attached to the motion a copy of a complaint which the plaintiff had filed at 11:00 a.m., on October 3, 1958, in the Sebastian Circuit Court against the St. Louis-San Francisco Railway Company to recover damages for the same accident or collision of the truck and the freight train.

In paragraph II of the complaint of plaintiff against the railway company, the plaintiff alleged:

    "That on the 22nd day of June, 1958, plaintiff was
  driving a 1956 Chevrolet truck owned by Charles R.
  Jett of Wickes, Polk County, Arkansas, in a northerly
  direction on Oklahoma State Highway 11 approximately
  two miles east of the City of Tulsa, Oklahoma, when
  he was struck by a freight train owned and being
  operated by the defendant, St. Louis-San Francisco
  Railway Company, through its agents, servants and
  employees; that the said accident was the sole and
  proximate result of careless and negligent acts by
  the said agents, servants and employees of the
  defendant, St. Louis-San Francisco Railway Company,
  acting within the scope of their employment; that the
  said acts of negligence were as follows:
    "(a) That said defendant, through its agents,
  servants and employees, carelessly and negligently
  failed to signal the approach of said freight train
  to said Oklahoma State Highway 11 as required by law.
    "(b) That the defendant's servants, agents and
  employees carelessly and negligently failed to
  maintain a lookout as required by law.
    "(c) That the defendant's agents, servants and
  employees carelessly and negligently operated said
  freight train at an excessive, unlawful and high rate
  of speed under the circumstances there existing.
    "(d) That the defendant carelessly and negligently
  failed to maintain said crossing in proper condition
  and permitted it to be in a dangerous and hazardous
  state of repair.
    "That the aforesaid careless and negligent acts
  were the sole proximate cause of the accident which
  occurred between the truck being operated by said
  plaintiff and the defendant's freight train,
  resulting in severe and permanent injuries to the
  plaintiff as hereinafter set forth more fully."

Also attached to the motion is a copy of the answer of the defendant, St. Louis-San Francisco Railway Company, to said complaint, filed in the Sebastian Circuit Court at 11:00 a.m., October 3, 1958, in which answer the defendant alleged:

    "* * * that the accident in question was the sole
  proximate result of the careless and negligent acts
  of the plaintiff, Albert Frank Gentry in that he
    "(a) carelessly and negligently failed to maintain
  a proper lookout;
    "(b) carelessly and negligently operated his
  automobile at a high, unlawful and dangerous rate of
  speed under the circumstances existing;
    "(c) carelessly and negligently failed to yield the
  right of way to the approaching train of the
  defendant;
    "(d) carelessly and negligently failed to maintain
  his vehicle under proper control so as to be able to
  avoid said accident.
    "That the aforesaid careless and negligent acts of
  the plaintiff were the sole proximate cause of said
  accident, or, in the alternative, were

  a contributing cause and constitute contributory
  negligence equal or in excess of any negligence on
  the part of said defendant and bar any recovery by
  plaintiff herein."

Following the filing of the complaint and the answer, the court on the same date, October 3, 1958, entered a judgment which, omitting the formal parts, is as follows:

    "Now on this 3rd day of October, 1958, this cause
  comes on to be heard, the plaintiff appearing in
  person and through his attorney, Sam Sexton, Jr., and
  the defendant appearing through its attorneys,
  Warner, Warner & Ragon, and both sides announcing
  ready for trial and agreeing that a jury be waived
  and all issues of fact being submitted to the Court
  sitting as a jury, the cause proceeds to trial on the
  pleadings, testimony of witnesses, exhibits and
  argument of counsel. And the Court being well and
  sufficiently advised finds the issues in favor of the
  plaintiff, Albert Frank Gentry, and against the
  defendant, St. Louis-San Franciso Railway Company,
  and finds that the plaintiff has incurred and will
  incur in the future medical and hospital expenses,
  loss of earnings, severe pain and suffering and
  mental anguish, and permanent disability and has been
  damaged by reason thereof and by reason of all other
  damages recoverable by law in the sum of $4500.00 by
  reason of the careless and negligent acts of the said
  defendant.
    "It is therefore considered, ordered, adjudged and
  decreed that the plaintiff have and recover of and
  from the defendant, St. Louis-San Francisco Railway
  Company, the sum and amount of $4500.00, together
  with all his costs herein expended.
    "And it further appearing to the Court that the
  defendant, St. Louis-San Francisco Railway Company,
  has this day paid into the registry of the Court the
  aforesaid sum of $4500.00, together with all costs
  herein in full satisfaction of said judgment, said
  judgment is hereby satisfied in full and the
  defendant discharged."

Upon the entry of the judgment, the plaintiff personally satisfied the same by endorsing on the margin thereof the following:

"Satisfied in full this 3rd day of October, 1958.

/s/ Albert F. Gentry."

In the response of the plaintiff herein to the motion and its exhibits, as hereinbefore set forth, the plaintiff alleged that on March 18, 1959, at 9:28 a.m., he filed a motion in the Sebastian Circuit Court, Fort Smith District, to vacate the judgment that had been entered in his favor on October 3, 1958. The plaintiff attached to his response a copy of the motion to vacate the judgment, the response of the defendant railway company thereto, and the order of the court on the motion to vacate.

In the motion to vacate the plaintiff alleged:

"I

    "That this Judgment was brought about by mutual
  mistake of the Plaintiff and Defendant herein and has
  resulted in unavoidable casualty to this Plaintiff.

"II

    "That the Plaintiff herein tenders to the Court the
  sum of Forty-five Hundred Dollars (4500.00) which is
  the sum adjudged against the Defendant ...

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