Blackmon v. Estate of Wilson
| Decision Date | 03 January 1986 |
| Citation | 709 S.W.2d 596 |
| Parties | William F. (Bubba) BLACKMON, Jr., Plaintiff-Appellee, and Wife, Miki Blackmon, v. The ESTATE OF Stanley WILSON, Defendant-Appellant. and William BLACKMON, Plaintiff-Appellee, v. The ESTATE OF Stanley WILSON, Defendant-Appellant. 709 S.W.2d 596 |
| Court | Tennessee Court of Appeals |
Thompson, Hendrix, Harvey, Johnson, Blanchard & Adams, Lloyd S. Adams, Jr., Memphis, for the Estate of Stanley Wilson.
A. Russell Larson, Brown & Larson, P.A., Jackson, for William J. (Bubba) Blackmon.
Hill, Boren & Strickland, P.C., R. David Strickland, Jackson, for William J. Blackmon.
O'HEARN, Special Judge.
This is an appeal taken by the administrator ad litem of the estate of Stanley Wilson, the defendant in the trial court. Several months after the automobile accident upon which this cause arose, Wilson died from a cause unrelated to the accident.
Separate actions were filed by plaintiffs William F. (Bubba) Blackmon, Jr., and wife, Miki Blackmon and William J. (Joey) Blackmon. The actions were later joined into a single cause. The jury awarded Bubba Blackmon a verdict of $250,000, granted a judgment of $100,000 in favor of Joey Blackmon, and found for the defendant against Miki Blackmon. Miki Blackmon, who was separated from Bubba at the time of the accident in which plaintiffs were involved and has since obtained a divorce from him, did not appeal.
We reverse.
TESTIMONY PRESENTED AT TRIAL
Bubba Blackmon and Joey Blackmon are cousins. Stanley Wilson and Joey Blackmon lived at the same address. They were not working on April 17, 1981, when Bubba Blackmon came by to see them. The three decided to go to a bar known as Sparky's, south of Savannah, Tennessee "to just dance, to try to meet some girls and drink some." They left for Savannah between 4:00 and 5:00 p.m. in a 1977 Thunderbird. Both plaintiffs testified that nothing alcoholic was drunk during the day until they stopped and bought a pint or half a pint of vodka. Wilson was driving the vehicle with Joey in the front seat and Bubba in the back. The testimony was to the effect that Joey and Stanley Wilson drank a modest amount of vodka and that Bubba "was feeling his liquor." In the parking lot of Sparky's, Bubba was arrested for public drunkenness as a result of which he spent four or more hours in jail. Joey and Wilson followed Bubba to the jail and left upon learning that he would be incarcerated for some time. They returned to Sparky's where Joey testified that each ordered a beer. Joey further testified that while at Sparky's, they found two girls with whom to dance. The girl that danced with Wilson slapped him while on the dance floor because he pinched her. Joey went outside with his companion and sat in the car for some time, leaving Wilson in the establishment. As he was leaving Sparky's Wilson threw a chair at the table where the two girls were sitting. The owner, Sparky, went to the door and told Wilson, "Don't come back in here no more" and "Don't you ever bring anybody in here no more." Joey said to Sparky, "We're leaving," to which Sparky retorted, "Just make sure you don't come back." At this point, Joey and Wilson left for Savannah to pick up Bubba at the jail. Joey testified that at this time, Wilson was "stone cold sober."
At Savannah, Bubba was released from jail in the late evening. The three friends departed to return to Jackson. Bubba testified that Joey and Wilson were "both in real good shape." Both Joey and Bubba testified that upon leaving the jail, Joey Blackmon was driving and Bubba was lying down in the back seat and that shortly thereafter, Bubba went to sleep. Joey stated that on the way he became sleepy and asked Stanley to drive, and Stanley was sober at this time. Soon after Wilson took the wheel, Joey testified that he went to sleep. Bubba stated that he slept in the back seat rousing only once to ask where they were and that the next thing that he knew, they were skidding toward a utility pole.
Each of the plaintiffs was seriously injured as a result of the accident. Upon investigation at the scene of the accident by the Jackson City Police, Stanley was arrested and charged with driving under the influence of intoxicants and was taken to jail. With the exception of the plaintiffs, there were no witnesses as to the state of intoxication of Wilson while he was driving the car or as to when, during the drive, he took the wheel of the Thunderbird.
The only witness as to the appearance of sobriety of Wilson immediately after the accident was the arresting officer, Larry Long. Officer Long pulled Wilson out of the car but did not remove the other two occupants because he said that "they were injured pretty bad." An ambulance came and took Bubba and Joey to the hospital. Relating to Wilson, Officer Long stated:
A. Being around Mr. Wilson, I could smell an odor of some type of alcoholic beverage coming from his person.
Q. Well, what about his speech. How did he speak?
A. As best I can remember, he had a slurred speech.
Q. And did you reach a conclusion as to whether or not--as to what his condition was regarding intoxication?
A. I came to the conclusion on the scene that Mr. Wilson was under the influence of an intoxicant or drug.
Q. And as a result of that, as has been testified earlier, you placed charges against him for that; did you not?
A. I placed charges upon Mr. Wilson for being DUI.
Q. From that point, where was Mr. Wilson transported?
A. He was transported to the City Police Department.
Q. And was he incarcerated there?
A. Yes.
ISSUES UPON WHICH THE APPEAL IS BASED
On 17 March 1982, William F. (Bubba) Blackmon and his wife, Miki Blackmon, filed a complaint against the defendant alleging that certain other named defendants who were no longer parties to the cause at the time of the trial, entrusted the 1977 Thunderbird to Stanley E. Wilson "when it was apparent that Mr. Wilson was intoxicated and unfit to operate a vehicle in a safe manner." The complaint also alleged:
At the time and place of this accident the Defendant Stanley Wilson was operating his vehicle in a negligent manner, at an excessive rate of speed and under the influence of alcohol, without keeping a proper lookout ahead and thereby failing to keep his vehicle under proper and reasonable control.
The Defendants violated one or more statutes of the State of Tennessee and ordinances of the City of Jackson, Tennessee which were in full force and effect on the date of this accident and which govern the operation of motor vehicles upon the highways of the State of Tennessee and the streets of the City of Jackson, Madison County, Tennessee, to wit:
'(a) The Defendant was negligent in operating his vehicle in a reckless manner in violation of T.C.A. 55-10-205 AND Section 18-98 of the Jackson City Code.
(b) The Defendant was negligent in operating his vehicle while under the influence of an intoxicant in violation of T.C.A. 55-10-401 and Jackson City Code Section 18-102.
(c) The Defendant (sic) was negligent in entrusting said vehicle to a person who was unfit to drive said vehicle in a safe and proper manner in violation of T.C.A. 55-10-311 and 55-10-312.'
It was alleged that Wilson was driving at an excessive rate of speed and that he lost control of the car. This complaint was signed by William F. (Bubba) Blackmon Miki Blackmon and law offices Brown & Holmes, P.A. by William Houston Brown, attorney.
On 16 April 1982 before a responsive pleading had been filed, an amended complaint was filed mentioning nothing about drinking or intoxication, alleging that Wilson was driving at an excessive rate of speed without keeping a proper lookout ahead and thereby failing to keep his vehicle under proper and reasonable control and that he "was negligent in operating his vehicle in a wreckless (sic) manner in violation of T.C.A. 55-10-205 and Sec. 18-98 of the Jackson City Code."
This complaint was not signed by Bubba and Miki Blackmon as was the original, but only by Brown, Holmes and Rich, P.A. and by A. Russell Larson, attorney. On the same day a complaint was filed by William J. Blackmon, plaintiff, against the administrator of the estate of Stanley Wilson signed by T. Robert Hill attorney for Hill, Garrety & Associates, P.C. as attorney for the plaintiff. It made no mention of drinking or intoxication.
When Mr. Adams, the attorney for defendant, tried to cross-examine Bubba Blackmon about the allegations of intoxication in the original complaint, the trial judge ruled that he could not pursue that course of examination. The court stated in part ... After this, Mr. Adams endeavored to offer the original complaint as an exhibit. The court allowed it to be filed as an offer of proof with an instruction that the jury not be allowed to see it.
We think the trial judge was in error. We agree that the plaintiff should not be "bound or stuck" with prior pleading and it should not be conclusive as a judicial admission but we believe the defendant had the right to pursue examination of it and to let the jury see it for the purpose of weighing credibility of Bubba Blackmon. We hold that it was admissible for the purpose of being weighed against other evidence to the contrary.
SHOULD THE PRIOR INCONSISTENT STATEMENT OF BUBBA BLACKMON
HAVE BEEN ALLOWED IN EVIDENCE AS TO JOEY BLACKMON
AND SHOULD THE VERDICT RENDERED IN
FAVOR OF JOEY BLACKMON BE
REVERSED
We think that the prior inconsistent statement made by Bubba Blackmon in his original complaint should have been allowed into evidence with an instruction to the jury that it was admitted only for the purpose of allowing them to test the truthfulness and veracity of the witness (Bubba Blackmon) and to disregard such...
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