Black v. Moree

• Decision Date: 05 April 1916
• Citation: 185 S.W. 682,135 Tenn. 73
• Parties: BLACK v. MOREE.
• Court: Tennessee Supreme Court

185 S.W. 682

135 Tenn. 73

BLACK v. MOREE.

Supreme Court of Tennessee.

April 5, 1916

Certiorari to Court of Civil Appeals.

Action by Mamie Moree against James Black. To review a judgment of the Court of Civil Appeals for plaintiff, defendant petitions for certiorari. Judgment reversed, and cause remanded for new trial.

Maynard & Lee and J. R. Penland, all of Knoxville, for plaintiff below.

H. N Cate, of Knoxville, and W. D. McSween, of Newport, for defendant below.

BUCHANAN J.

From a judgment for the sum of $750 against him and in favor of Mamie Moree, Black appealed to the Court of Civil Appeals where the judgment was affirmed, and he has brought the record before this court for review by his petition for certiorari and assignments of error. The action was for damages, and was tried before a jury in the circuit court. The right to recover was predicated on divers grounds indicated by the general statement hereinafter made as to facts which plaintiff's evidence tends to establish. The injury for which recovery was sought resulted as will appear from the following excerpt from plaintiff's testimony:

"On Sunday afternoon, August 18, 1912, I was injured by being thrown from an overturned buggy. The animal drawing the buggy became frightened at an automobile which was being driven by the defendant, James Black. I did not know at the time he was running the car, but have since learned that he was. The injury occurred in the public road between Piedmont and New Market, Jefferson county, Tenn., and about two miles from New Market. I live in Knoxville, Tenn., and had come up from Knoxville Saturday to Piedmont to visit my grandmother, and two girls named Davis came up with me. On Sunday afternoon about 4 o'clock we were starting to New Market to take the train for Knoxville. When about two miles out from New Market the buggy in which I was being driven met the automobile. Coy Thompson was driving the buggy. The buggy was drawn by a mule."

Plaintiff then proceeds to relate her version of the details of the conduct of defendant, and following her evidence is that of other witnesses tending to show that the proximate cause of her injury was the negligent conduct of the defendant in the operation of the automobile. She introduced evidence tending to show the character of the injuries she claims to have sustained. All of the foregoing of her evidence was disputed by evidence introduced on behalf of the defendant, but she introduced one matter of evidence the truth of which the defendant did not deny, and it was that on the occasion in question the defendant, Black, was the owner of the automobile; that the automobile had been registered according to the requirements of the first paragraph of the first section of chapter 173, Acts of 1905, but had not been registered by defendant, Black, when he became the owner of it, as was required by the second paragraph of the first section of that act. (A copy of the act will be set out on the margin of this opinion.) ^[1]

The defendant by his evidence showed, and this fact is not in dispute, that at the time he bought the car he paid the dealers from whom he purchased the fees necessary to a full compliance with both the first and the second paragraphs of the first section of the act of 1905, and requested one of these dealers to attend to the matter of having the car registered in the name of the defendant, as required by the act, and that defendant thought such registration had been accomplished until after the occasion in question. Defendant also introduced evidence tending to show that his management of the automobile on that occasion was not negligent under the common law, and that his failure to comply with the act of 1905, in so far as there was a failure to comply with it, did not cause the overturning of the buggy, or in any degree contribute as a cause of that event, and that in his management of the car on the occasion in question he observed all the requirements of sections 3 and 4 of the act of 1905; that his failure to observe the requirements of the second paragraph of the first section of that act had no causal connection whatsoever with the injury. He also introduced evidence tending to show that plaintiff was not, in fact, injured by the overturning of the buggy, but that she jumped clear of the vehicle, and alighted without injury. The material facts being thus in conflict, his honor the trial judge, in his general charge to the jury, incorporated therein both paragraphs of section 1, c. 173, Acts of 1905, and with respect thereto said:

"Now, it is insisted, gentlemen of the jury, in the first place, that the defendant failed to comply with that statute. I instruct you, gentlemen of the jury, that if you find the plaintiff is correct in this insistence, and that the defendant did operate the machine along the public highways without complying with the requirements of the first section of this act, that such conduct on his part would be negligence per se, and that if an injury resulted to plaintiff by reason of such negligence, and the wrongful act of the defendant in violating that statute, that he would be liable for some damages; but how these facts are, you must determine for yourselves from the proof in the case."

And on the same subject, in another part of the charge, the judge said:

"If he had the machine registered, he had a right to operate it, but if it was not registered, then he would be liable for any damages that were caused directly or proximately by the machine being operated along the public highway."

After the conclusion of the general charge of the court one of defendant's counsel, conceiving, no doubt, that the above-quoted portion of the general charge was calculated to mislead the jury, sought to have the court cure it, and for that purpose requested the court to charge the jury as follows:

"If you should find that the defendant's car had not been registered as required by Acts of 1905, c. 173, and should further find that this failure to register same had no connection with and in no way caused the accident in which she was injured, then this failure to so register it alone would not justify a verdict for plaintiff."

The court refused to give the special charge, assigning as a reason that he had already sufficiently covered the proposition in the general charge.

The foregoing action of the court was assigned as ground for a new trial in the motion of defendant therefor. The court overruled this motion, and in so doing said:

"The court is of opinion and doth find that by a clear preponderance of the evidence the automobile, at the time the injury complained of occurred, was being operated at a less rate of speed than twenty miles an hour, and that as soon as it was apparent that the mule driven by plaintiff's companion was about to become frightened, the automobile was brought to a full stop. In other words, the court finds from a clear preponderance of the evidence that the defendant fully complied with the requirements of sections 3 and 4 of Acts of 1905, c. 173, and that there was no common-law liability under the second and third counts of the declaration, and that the only basis for liability in this case is the failure of the defendant to comply with section 1 of said Acts of 1905, c. 173, with reference to the registration of his automobile, and that because of his failure to comply with section 1 of said act he incurred absolute liability for the injury to plaintiff in this cause, and for this reason the motion for a new trial is overruled; but I would not be satisfied with the verdict, and would set it aside without hesitation, if the car had been properly registered at the time of the accident, as is prescribed by Acts of 1905, c. 173."

It is our opinion that the defendant's right to a fair and impartial trial was prejudiced by the action of the court in charging the jury, as shown by the foregoing excerpts, and in refusing the special charge set out supra. By the charge as given we think the jury were led to conclude that defendant was liable if the mule took fright at the automobile, and injury resulted as a consequence of the fright, at a time when the automobile was on the public highway, and not registered in the name of the defendant, whether defendant was negligent or not negligent in the management of the automobile, according to the requirements of the common law, or the provisions of sections 3 and 4 of the Acts of 1905. The special charge was a correct statement of the law. The failure of defendant to register the car did not augment any injury plaintiff may have sustained. No evidence tends to show that the unseemly conduct of the mule was in the least degree influenced by nonregistration. Registration would not have prevented the automobile from being on the highway on the occasion in question, under the control of the defendant, nor would registration have increased or diminished the care with which it was handled. The automobile was, as already shown, registered under the first paragraph of section 1 of the act, and defendant believed it was also registered under the second paragraph of the act in his name; so under these circumstances there was in his mind every incentive to careful operation of the car which actual registration would have produced. It is therefore clear that the failure to register was entirely outside of and apart from the sequence of events which led up to and culminated in the injury. For aught we know to the contrary, the jury may have entertained the same views on the question of negligence which the trial judge expressed in overruling the motion for a new trial, and yet the jury no doubt felt impelled by the excerpts from the charge to find in favor of liability.

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