Burkett v. Johnston

• Decision Date: 13 January 1955
• Citation: 282 S.W.2d 647,39 Tenn.App. 276
• Parties: Walter BURKETT, Administrator of Raymond Maxwell Burkett, Deceased, Plaintiff-in-Error, v. Mrs. Dorothy Gibbs JOHNSTON, Defendant-in-Error. 39 Tenn.App. 276, 282 S.W.2d 647
• Court: Tennessee Court of Appeals

Page 647

282 S.W.2d 647

Walter BURKETT, Administrator of Raymond Maxwell Burkett, Deceased, Plaintiff-in-Error, v. Mrs. Dorothy Gibbs JOHNSTON, Defendant-in-Error.

39 Tenn.App. 276, 282 S.W.2d 647

Court of Appeals of Tennessee, Western Section.

Jan. 13, 1955.

Certiorari Denied by Supreme Court May 6, 1955.

[39 TENNAPP 278] Lowell Taylor, Memphis, Robert P. Adams, Trenton, for plaintiff in error.

Marion H. Holmes, Jr., Holmes & Holmes, Trenton, for defendant in error.

CARNEY, Judge.

This is an appeal by the defendant below from a judgment of $7,500 in favor of the plaintiff, Mrs. Dorothy Gibbs Johnston, for the unlawful death of her husband, Thomas Jefferson Johnston.

Plaintiff-in-error has made eight Assignments of Error. Assignment of Error #1 is directed to the action of the Trial Court in refusing to sustain the defendant's [39 TENNAPP 279] Motion for a Directed Verdict at the conclusion of all the proof. Therefore, we will discuss first the evidence as presented:

On Sunday morning, May 17, 1953, about 6:30 A. M. the passenger automobile owned by the deceased, Raymond Maxwell Burkett, was discovered by passersby on State Highway 54 between Trenton, Tennessee, and Alamo, Tennessee, at a point about five miles southwest of Trenton. The highway from Trenton to Alamo runs in a southwesterly direction.

The front end of the automobile was smashed and damaged. The deceased, Raymond Maxwell Burkett, owner of the car, was dead under the wheel and beside him on the right front seat was the body of Thomas Jefferson Johnston, plaintiff's intestate.

The car was upright at right angles to the center of the road with the front end of the car pointed eastward and located off the pavement, over against the north end of the abutment of a concrete culvert. The back of the car was on the blacktop pavement of the road. There was a tire mark on the east shoulder which extended for a length of sixty feet up to the north end of the concrete culvert. There were no eye witnesses to the accident, but the proof showed that the previous night had been stormy and rainy, and there was blood inside the car and other damages indicating that the two people had met death as a result of the collision of the automobile with some object.

At this point on the highway, the highway is straight and level, and the blacktop pavement was twenty-two feet wide and the concrete culvert was over about 8 1/2 feet from the east margin of the blacktop.

The Highway Patrolman testified that when he was removing identification papers from the dead men he [39 TENNAPP 280] smelled alcohol on both the bodies and that in the glove compartment there was a half-pint bottle and a pint bottle, both containing whiskey. One bottle was slightly less than half full and in the other bottle there was only about an inch or two of whiskey, but he did not remember which was which.

The record is entirely silent as to when the men got together, where they had been or as to where they were going.

Plaintiff's Declaration was in two Counts. The First Count alleged that the plaintiff's intestate was a guest in the car of Burkett and that the said 'Burkett negligently drove said automobile off or partly off the left side of said highway and into or against the concrete abutment of a bridge or culvert.'

The Second Count alleged that the said 'Burkett negligently, and without having said automobile under control, drove said automobile too near the right hand margin of the surface of said highway, so that the right wheels left the paved surface and went onto the dirt shoulder which was muddy and slick; that said Burkett last control of said automobile and the same slid or rolled across to the left side of said highway and left, or partly left, the paved surface on the left side and ran into and against the concrete abutment of a bridge or culvert with such force as to wound and kill the said Thomas Jefferson Johnston.'

The defendant filed pleas denying all negligence and also pleaded that the plaintiff's intestate was guilty of contributory negligence. The defendant also filed this additional plea:

'That if Thomas Jefferson Johnston was injured and died, as averred in the Declaration, and each count thereof, he assumed and incurred all of the [39 TENNAPP 281] risk of travel incident to and resulting from the way and manner, in which the automobile, in which he was riding, was being driven and operated at the time and place averred in plaintiff's declaration, and each count thereof, and under the conditions then and there existing, and for which this defendant is not liable.'

Defendant-in-error admits there is no evidence to sustain Count 2 of the Declaration, but insists that Count One is sufficient to sustain the verdict.

In considering whether a verdict should have been directed for the defendant we must look to all the evidence, take as true the evidence for plaintiff, discard all countervailing evidence, and allow all reasonable inferences of evidence in favor of the plaintiff. Everett v. Evans, 30 Tenn.App. 450, 207 S.W.2d 350.

In the case at Bar, so far as the record shows, there were no eye witnesses to the events which resulted in the unfortunate death of these two people, and the plaintiff relied upon circumstantial evidence to prove her case. Judge Felts in Everett v. Evans, 30 Tenn.App. 450, 207 S.W.2d 350, 352, announces what we believe to be the general rule concerning the application and effect of a case in which plaintiff relies wholly or in part upon circumstantial evidence to make out his case.

'(2, 3) A case may be made out by direct evidence, circumstantial evidence, or by a combination of direct and circumstantial evidence. If the evidence for plaintiff, together with all the reasonable inferences therefrom, made her theory more probable than any other, this was enough to take the case to the jury and to support the verdict. Law v. Louisville & N. R. Co., 179 Tenn. 687, 699, 170 S.W.2d 360; New York Life Ins. Co. v. Nashville Trust [39 TENNAPP 282] Co., 178 Tenn. 437, 159 S.W.2d 81; Bryan v. Aetna Life Ins. Co., 174 Tenn. 602, 130 S.W.2d 85; Phillips v. Newport, 28 Tenn.App. 187, 187 S.W.2d 965.

'But if the evidence for plaintiff, together with all such inferences therefrom, made her theory no more probable than the contrary of it; if such evidence and inferences left it a matter of equal probability whether plaintiff's injuries were caused by defendant's negligence or by some other cause for which he would not be responsible; that is, if it was a matter of speculation and conjecture how the accident happened, then a verdict should have been directed for defendant. Buckeye Cotton Oil Co. v. Campagna, 146 Tenn. 389, 242 S.W. 646; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Nichols v. Smith, 21 Tenn.App. 478, 489, 111 S.W.2d 911, 918; Willis v. Heath, 21 Tenn.App. 179, 186, 107 S.W.2d 228, 233; Phillips v. Newport, 28 Tenn.App. 187, 187 S.W.2d 965, 971.'

Prosser on Torts--1941--at page 291 defines circumstantial evidence as follows:

'Circumstantial evidence is evidence of a fact or set of facts from which the evidence of another fact may be reasonably inferred. It involves not only the assertion of witnesses as to what they have observed, but a process of reasoning by which a conclusion is drawn. Negligence may, of course, be proved by circumstantial evidence. The testimony of eye witnesses of the actor's conduct is not required and it may be inferred from the proof of other facts and circumstances.'

When we analyze and review the evidence presented in behalf of plaintiff's case in light of the expressions set [39 TENNAPP 283] out above, we are of the opinion that the jury might well have inferred that since the deceased, Burkett, was proven to be the owner of the passenger automobile involved in the death, and the deceased, Burkett, was found dead under the wheel of his automobile, that Burkett was driving said automobile at the time of his death. Likewise, we think that since the deceased, Johnston, was found dead on the seat beside Burkett, and there was no evidence indicating to the contrary, the jury could have found that Johnston was an invited guest in the car of Burkett.

Since there was damage to the front end of the automobile a little to the left of center, and since there was an automobile track on the dirt shoulder extending for a distance of 60 feet from the east edge of the blacktop to the north end of the concrete culvert, and the damaged car was found with the front end up against this same culvert, the jury could well infer and find as a fact that Burkett's Dodge automobile was the one which ran off the east side of the blacktop pavement and made the 60-foot track and ran into the north end of the culvert, and that said automobile was being driven at such a speed and hit the culvert with such force as to kill both occupants of the automobile, and then the rear end of the automobile skidded across the highway with the right end nosed up against the culvert.

Of course, technically and theoretically, some other automobile could have made the 60-foot track leading from the east edge of the blacktop to the north end of the culvert, or from the north end of the culvert along the shoulder to the east edge of the blacktop, but we think the evidence preponderates in favor of plaintiff's theory that this track was made by the automobile of the deceased, Burkett.

[39 TENNAPP 284] Judge Hickerson, in the case of Phillips v. Newport, 28 Tenn.App. 187, 187 S.W.2d 965, 971, in discussing the general requirement that circumstantial evidence supporting the plaintiff's case must tend to exclude other reasonable hypotheses, had this to say:

"Tend to exclude,' as this term is used in decisions relating to circumstantial evidence, does not mean that the proved circumstances must be inconsistent with other contrary theories. It is sufficient if such facts and circumstances create a preponderance of evidence...