McRoberts v. Gorham

Opinion

KERRIGAN, Acting P. J.

This is an appeal from a judgment of dismissal for lack of prosecution in failing to bring the action, to trial within five years after it was commenced. (Code Civ. Proc., § 583.)

This lawsuit arose out of a vehicle collision which occurred on November 20, 1963, on U.S. Highway No. 66, approximately four miles west of Essex Road in San Bernardino County, in which the plaintiff Noel McRoberts sustained personal injuries and his wife and mother-in-law were killed. The action was initiated by the plaintiff Noel McRoberts to recover damages for the injuries he sustained in the collision and to recover damages for the wrongful death of his wife. He was joined in the action by the heirs of the mother-in-law, who sought damages for her wrongful death.

[1043]

Named as defendants were Roy Allen Gorham, Aaron Bryant, Elton Eugene Kent and Agriculture Transportation Association of Texas (ATA).

The point where the accident occurred is a two-lane highway running in a generally easterly-westerly direction (one lane in each direction). Plaintiff Noel McRoberts was driving a Ford in an easterly direction. The collision occurred when the Ford was struck head-on by a Mercury driven by the defendant Gorham in a westerly direction. Plaintiffs contend that Gorham’s Mercury was in the eastbound lane when it struck the McRoberts’ Ford. Just prior to the collision, a third car, a 1959 Dodge driven by defendant Aaron Bryant, an airman in the United States Air Force, attempted to pass a fourth vehicle, an eastbound tractor and trailer, being driven by the defendant Elton E. Kent, an employee of the defendant ATA. When Bryant attempted to pass the truck-trailer and plaintiff’s Ford, he encountered Gorham’s Mercury coming in the opposite direction. Bryant attempted to avoid a head-on collision with Gorham’s Mercury by proceeding to the north shoulder of the highway, but had to return to the westbound lane because the shoulder narrowed at a culvert. Gorham, westbound, apparently entered the eastbound lane to avoid Bryant. Bryant, drinking and traveling between 85-100 m.p.h. fled the scene and was later apprehended in Needles.

Two lawsuits were filed by McRoberts and the heirs of his wife’s mother: On July 9, 1964, plaintiffs filed the San Bernardino Superior Court action. On June 17, 1965, plaintiffs also filed a complaint in the United States District Court for the Central District of California [Los Angeles] against the United States of America under the provisions of the Federal Tort Claims Act (28 U.S.C.A. § 1346) on the theory that Bryant was on military duty and acting in the course and scope of his employment with the government at the time of the collision.