Caldwell v. Hodges
Decision Date | 28 April 1934 |
Citation | 77 S.W.2d 817,18 Tenn.App. 355 |
Parties | CALDWELL v. HODGES. |
Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court Jan. 12, 1935.
Appeal in Error from Circuit Court, Maury County; W. B. Turner Judge.
Action by Mrs. Malcy Hodges, administratrix of Mary Frances Freeman deceased, against Howell Caldwell and others, wherein named defendant filed demurrer. From a judgment against named defendant, named defendant appealed in error.
Affirmed and certiorari denied by Supreme Court.
Thos. H. Peebles, of Columbia, for plaintiff in error.
R. S. Hopkins, of Columbia, and J. R. Morris, of Waverly, for defendant in error.
In the month of June, 1931, there was a collision between two automobiles on the Jackson highway about a mile and a half north of Columbia, Tenn., and, as a result thereof, Mary Frances Freeman, an occupant of one of the two automobiles, lost her life.
One of the two cars which thus collided was a "high powered" Buick coupé owned and driven at the time by Howell Caldwell, who was accompanied by a young lady, Miss Vera Nicholls.
The other of the two cars was a "one-seated T-model" Ford, without a top, owned by the Richardson Lumber Company, a corporation, and driven at the time by Murphy Lineberger, a young man about twenty years of age, who was accompanied by the deceased, Miss Freeman, and William Cranford, also a young man about twenty years of age. The three occupants of the Ford were on the same seat, with Miss Freeman seated between Lineberger and Cranford.
It is uncertain on the record whether the collision occurred on June 3d, a few minutes before midnight, or in the early morning of June 4th, a few minutes after midnight; but this is not material to the issues in this case.
Miss Freeman was rendered unconscious by the impact of the collision, and died about two days thereafter without regaining consciousness.
On September 24, 1931, Mrs. Malcy Hodges, administratrix of the estate of said Mary Frances Freeman, deceased, sued Howell Caldwell, Murphy Lineberger, and Richardson Lumber Company in the circuit court of Maury county for $25,000 as damages for the alleged wrongful death of her intestate.
The case was tried twice below, and, on the first trial, the Richardson Lumber Company was discharged from liability, but a new trial was granted as to Caldwell and Lineberger.
At the second trial, the jury found for the plaintiff and placed the damages at $3,000, but attempted to apportion the damages, "$2,000 to Caldwell,--$1,000 to Lineberger."
The plaintiff was permitted by the court to dismiss her suit against Murphy Lineberger, and thereupon a judgment was rendered in favor of plaintiff and against defendant Howell Caldwell for $2,000 and costs. After his motions for a new trial and in arrest of judgment had been overruled, defendant Caldwell appealed in error to this court and has assigned errors here.
It is seen that there are but two parties to the cause in this court, and, for convenience, we will refer to Mrs. Malcy Hodges, administratrix, etc., as plaintiff and to Howell Caldwell as defendant.
The plaintiff's declaration, as originally filed, contained two counts and to this declaration defendant Caldwell interposed a demurrer which was overruled by the trial court. The action of the trial judge, in overruling this demurrer, is the basis of defendant's first assignment of error in this court.
The demurrer asserts that each count of said declaration is insufficient and fails to state a cause of action against defendant Caldwell, in that, each count of the declaration shows that the proximate cause of the accident was the negligence of another or others, to wit, Murphy Lineberger, the Richardson Lumber Company, and the plaintiff's intestate.
The first count of the declaration, after naming the parties and laying the damages at $25,000, is as follows:
"That the plaintiff is a citizen of the State of Tennessee, duly appointed and qualified Administratrix of the estate of Mary Frances Freeman deceased, who was fatally injured on the morning of June 4th, 1931, in an automobile accident on the Jackson Highway in Maury County, Tennessee, some one and one half miles north of Columbia, from which injuries she died on June 6th, 1931; and that at the time of her death, she was twenty (20) years of age, was sound in body and mind, with a prospect of a long and useful life, and was a graduate of High School.
That on the night of June 3rd, 1931, the deceased, Mary Frances Freeman, with a number of other young people, attended a dance or social gathering in Columbia, Maury County, Tennessee, and about midnight the deceased and one William Cranford as the invited guests of the defendant Murphy Lineburger left the entertainment in a one seated automobile, belonging to the defendant Richardson Lumber Co., in the possession of and driven by the said Murphy Lineburger, when the said Lineburger drove said motor vehicle with his guests to the Riverside Filling Station, situated some one and one half miles north of Columbia, Maury County, Tennessee, on the Jackson Highway, where the said Murphy Lineburger and his guests, the deceased and William Cranford, stopped and took midnight lunch; and about 1 o'clock A. M. on June 4th, 1931, the three occupants of said Richardson Lumber Co. motor vehicle, resumed their journey with the said Murphy Lineburger driving the car, the motor vehicle at the time of their departure being headed about north, and located on the east side of the Jackson Highway, near the front of the Riverside Filling Station, when the defendant Lineburger drove north around a telephone pole, and two or three automobiles that were parked on the east side of the Jackson Highway, then turning the automobile to the left (west), when the said Lineburger, carelessly, negligently and without due caution, and without bringing the Richardson Lumber Co. Motor vehicle that he was driving to a stop, and in violation of law, drove said motor vehicle upon and partly across the Jackson Highway, the front wheels of the car being across the center line of the Highway and the rear wheels about the center line of said highway, and while his car was in this position, the defendant Howell Caldwell who was the owner of and driving a Buick Coupe or Roadster Motor vehicle, a very high powered car, approached the point on the Jackson Highway, where the Richardson Lumber Co. car had appeared on said highway, the Caldwell car going north and being run at the time at a furious, unlawful, careless, negligent and reckless rate of speed, from fifty to sixty miles per hour in the night time, and not having his car under control, collided with or struck the rear left side of the Richardson Lumber Co. Motor vehicle being driven by the defendant Murphy Lineburger, with such force and impact that the Richardson Lumber Co. car was knocked some thirty feet or more across the highway, and as a result, the deceased Mary Frances Freeman was thrown out of the Richardson Lumber Co. car, she striking the shoulder of the highway or bank some fifteen feet further away, with such violent force, that she was fatally injured and died as hereinbefore averred.
The plaintiff further avers, that the defendants, Murphy Lineburger, Richardson Lumber Co. and Howell Caldwell, were resident in Columbia, Maury County, Tennessee, and were perfectly familiar with the location of the Riverside Filling Station, and to continuous traffic on and over said highway at and about said Filling Station, both day and night, and the apparent dangers incident to travel on said highway, all of the defendants not infrequently driving over and on said highway and to or by said Filling Station, and were familiar with the parking space around said Filling Station, and knew of the inherent dangers of driving upon and over said Jackson Highway and in leaving the parking spaces around said Filling Station; knew the great amount of traffic on said highway in front of said Filling Station, and its congested condition, the said Lineburger left said filling station and without stopping the Richardson Lumber Co. car in which he had his guests, the deceased and William Cranford, he carelessly, negligently and unlawfully drove upon said Highway, without observing whether or not the traffic thereon was such that he could safely enter upon said highway, without danger to himself, the deceased and William Cranford, the other occupants of the car which he was driving, his negligence in so doing concurring with the negligence of the defendant Howell Caldwell herein shown, resulting in the death of Mary Frances Freeman.
That the defendant Howell Caldwell, although familiar with the location and traffic conditions on said Jackson Highway and at and about the Riverside Filling Station located thereon, in approaching said Filling Station and passing same to the place of collision, resulting in the death of Mary Frances Freeman; and although the Jackson Highway at the Filling Station and for six or eight hundred feet in the direction from which the defendant Caldwell was traveling at the time of the accident, was practically straight, and his view unobstructed, he was nevertheless driving his car at the time at such a terrific, dangerous, reckless, careless and negligent rate of speed, and that by reason thereof he had lost control of his car and is guilty of gross negligence in the killing of the deceased.
It is averred that the deceased Mary Frances Freeman, at the time of her death, was a visitor in Columbia, Tennessee, and was not familiar with the traffic conditions on the Jackson Highway, nor was she familiar with traffic and parking conditions around and about, and at the Riverside Filling Station, nor the...
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