Camurati v. Sutton

• Decision Date: 29 August 1960
• Citation: 48 Tenn.App. 54,342 S.W.2d 732
• Parties: Otto M. CAMURATI d/b/a Dixie Auto Sales and Richard Eugene Camurati, Individually, Plaintiff-in-error, v. Willie D. SUTTON and David H. Sutton, Individually and for the use and benefit of Emmco Insurance Company, Defendants-in-error. 48 Tenn.App. 54, 342 S.W.2d 732
• Court: Tennessee Court of Appeals

Page 732

342 S.W.2d 732

Otto M. CAMURATI d/b/a Dixie Auto Sales and Richard Eugene Camurati, Individually, Plaintiff-in-error, v. Willie D. SUTTON and David H. Sutton, Individually and for the use and benefit of Emmco Insurance Company Defendants-in-error.

48 Tenn.App. 54, 342 S.W.2d 732

Court of Appeals of Tennessee, Western Section.

Aug. 29, 1960 Certiorari Denied by Supreme Court Jan. 25, 1961.

[48 TENNAPP 55] Emmett Braden, Thomas Johnston, Memphis, for plaintiff in error.

W. J. Chiapella, Thomas A. Buford, Memphis, for defendant in error.

AVERY, Judge.

This suit was originally brought by Willie D. Sutton and David H. Sutton, individually and for the use and benefit of Emmco Insurance Company against Richard Eugene Camurati, d/b/a Dixie Motor Sales and Smith Motor Sales. It was later amended by proper order of the Court and consent of the parties so as to have the suit run against Richard Eugene [48 TENNAPP 56] Camurati and Otto M. Camurati, doing business as Dixie Auto Sales. Non-suit was taken as to Smith Motor Sales.

The case was tried to a jury in Division VI of the Circuit Court of Shelby County, Honorable Freel Hastings, Judge, where there was a verdict and judgment in the amount of $3,000 for personal injury to David H. Sutton and $403.50 for plaintiffs' property damage. Defendants filed motion for new trial, which was overruled, to which action of the Court defendants saved exceptions, prayed, were granted and perfected their appeal in error to this Court, the defendants below becoming plaintiffs-in-error and plaintiffs below becoming defendants-in-error in the Court of Appeals.

In this Opinion the parties will hereinafter be referred to by the status they had in the lower Court or by their respective personal names shown in the record.

The damages sued for, both personal injury and property damage, resulted from an accident which occurred on Highway 51 in the State of Mississippi a few miles below the Mississippi-Tennessee line near Memphis. The individual plaintiffs were the owners of a 1958 Ford motor vehicle. The accident occurred on December 12, 1958, about 4:30 to 5:00 o'clock p. m., at which time David H. Sutton was driving the Ford motor vehicle, which was owned by both David H. Sutton and his wife, co-plaintiff Willie D. Sutton. The defendant, Richard Eugene Camurati was driving a Cadillac automobile owned by Otto M. Camurati, d/b/a Dixie Auto Sales Company, by which Richard was employed and Richard had been in to Mississippi ostensibly for the purpose of buying automobiles and bringing them back to his employer at Memphis, Tennessee, for resale. He had with him on that occasion one Tony Salvaggio.

[48 TENNAPP 57] When reference is made in this Opinion to the respective vehicles, they will be referred to simply by the word 'Ford' and by the word 'Cadillac.' The direction in which the respective automobiles were traveling will be by the use of the cardinal point 'south', which was the direction the Ford was traveling, and by the use of the cardinal point 'north', the direction in which the Cadillac was traveling. Highway 51 is a concrete highway of sufficient width for two driving lanes with no stripe in the center, and runs generally in a southerly direction from Memphis, Tennessee.

The accident described in the pleadings and by the proof is a most unusual one. As these cars approached each other there was a concrete bridge 20 to 30 feet long with concrete banisters approximately at the point near where it was obvious to the drivers of both automobiles that they would meet. The front end of the Ford automobile was driven into the northwest end of the concrete banister on said bridge where it was broken up and the greater part of which rose into the air and came to a stop at the southeast corner of said bridge. The Cadillac automobile began to skid several feet before it arrived at the south end of the bridge, turned in a circular fashion across the center line of said highway and as it swung around it struck the south end of the banister on the west side of said bridge and came to a stop somewhat in an angular fashion more nearly headed in the opposite direction from which it was traveling. There was no collision of the automobiles with each other.

Emmco Insurance Company had the collision insurance on the Ford and paid an agreed amount of damage shown to be $1,610, less $50 or $1,560 to the plaintiffs.

[48 TENNAPP 58] David H. Sutton was injured, and his injuries will be hereinafter referred to. He sued for personal injuries in the amount of $25,000 and the owners of the Ford, both plaintiffs, sought $1,610 for property damage for the benefit of their insurer, Emmco Insurance Company.

The accident having occurred in the said State of Mississippi, the plaintiffs alleged in their declaration the contributory negligence statutes of the Code of Mississippi, Sections 1454 and 1455 as follows:

'Section 1454. In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.'

'Section 1455. All questions of negligence and contributory negligence shall be for the jury to determine.'

Therefore, we are confronted with a jury verdict determined as provided by the comparative negligence laws of the State of Mississippi.

The negligent acts charged to the defendant are that the driver of the Ford as he approached the bridge in question observed the driver of the Cadillac at a time when both were a short distance from the bridge and that the driver of the Cadillac 'suddenly and without warning crossed over the said center line of said Highway 51 [48 TENNAPP 59] south, and into the lane in which plaintiff was operating his vehicle; that in order to avoid a headon collision, plaintiff was forced to swerve his vehicle off of said highway, and in so doing struck the bridge abutment * * *', and alleges the damage to the automobile and the injury to plaintiff, David H. Sutton, was 'caused by the negligence of defendant as aforesaid in operating his automobile in a reckless and negligent manner and not keeping a proper lookout ahead and in using that portion of the public roadway unlawfully, while same was being used by plaintiff David H. Sutton in the operation of his motor vehicle.'

The plea of the defendants is a simple plea of not guilty.

The proof of the defendant is to the effect that as the Ford approached the end of the bridge nearest it the driver of the Cadillac observed the Ford being driven so that it would hit the abutment or the end of the banister of said bridge; that defendant applied his brakes while in his proper traffic lane, swerved his car to the left as he saw a part of the Ford vaulting through the air into the traffic lane used by the Cadillac, and in swerving the car to the left to miss that part of the Ford so advancing, the Cadillac swung around so that the rear of the right side struck the end of the banister hereinbefore stated and stopped as hereinbefore set forth.

Assignment of Error No. I is that 'there is no evidence to support the verdict.' Assignment of Error No. II is that 'the verdict is excessive.' Assignments of Error Nos. III, IV, V and VI are each levelled at the charge of the Court. Assignment of Error No. I makes it necessary that we carefully review the evidence to determine whether[48 TENNAPP 60] or not there is any evidence in the record from which the minds of reasonable men might reasonably disagree or such inferences as might be drawn from the evidence adduced, both circumstantially and orally, or by either from which a reasonable inference of negligence might be drawn, either direct or contributory.

Pictures of the respective automobiles taken after the accident, the portions of the highway and the bridge in question are exhibited with the record. Not a great deal can be gleaned from the photographs of the respective automobiles except the position where that part of the Ford which came to rest in the traffic lane which was being used or about to be used by the Cadillac came to rest and where the Cadillac came to rest in the traffic lane about to be used by the Ford.

The substance of plaintiffs' testimony is found in his answers on direct examination to the following questions:

'Q. Tell the Court and jury exactly again which direction you were going and what you did not what you observed. A. As I approached that bridge, approximately 100 feet from it, I could see up there, this way (indicating), this Cadillac, the defendant's car, meeting me. There was two people in it, and they were talking to each other. I could see them talking, that is how close they were. He came on my side of the road, on the west side of the highway, and when he veered across the highway, across the line, the second time, I pulled over to keep from hitting him.

'Q. At that point, let me ask you, were you north of the bridge and observed the defendant's car south of of the bridge? A. Yes.'

[48 TENNAPP 61] The highway at that point is shown by the proof to have been straight and level and there was no obstruction between the two automobiles that could have possibly obscured the view of either driver. A photograph of the highway showing a considerable distance both north and south of the bridge in question and showing the banisters of the bridge in question is filed as Exhibit No. 1 of plaintiffs to the bill of exceptions.

Plaintiff had nine cases of paint in the Ford. He was a painter by trade, at that time working in Hernando, Mississippi. Mr. Sutton states he was 'knocked out' by the collision of the Ford with the end...