Carter v. Pickwick Greyhound Lines, Inc.
| Decision Date | 20 May 1933 |
| Citation | 60 S.W.2d 421,166 Tenn. 200 |
| Parties | CARTER v. PICKWICK GREYHOUND LINES, Inc. |
| Court | Tennessee Supreme Court |
Certiorari to Court of Appeals, on Appeal from Circuit Court, Shelby County; A. B. Pittman, Judge.
Suit by R. Y. Carter against the Pickwick Greyhound Lines, Inc. Plaintiff died pending the litigation, and the case was revived in name of M. O. Carter, executor. Judgment for plaintiff was reversed, and the suit was dismissed by the Court of Appeals, and plaintiff brings certiorari.
Judgment of Court of Appeals modified, and case remanded.
Chandler Shepherd, Owen & Heiskell, of Memphis, for plaintiff in error.
Emmett W. Braden and Wilson, Kyser, Armstrong & Allen, all of Memphis, for defendant in error.
This is a personal injury suit, in which plaintiff was given a verdict for $1,000.
The Court of Appeals reversed the judgment of the trial court and dismissed the suit because the plaintiff had assumed inconsistent positions in the case.
We have heretofore granted the writ of certiorari, and the case has been argued at the bar by counsel.
On April 17, 1930, R. Y. Carter, aged seventy, a resident of Nashville, Tenn., while driving in a buggy on highway No. 61 in the state of Missouri, was struck by a bus operated by defendant and injured. R. Y. Carter instituted this suit on September 23, 1930, to recover damages for the injuries so received. On November 1, 1930, R. Y. Carter was found dead in his bed at a boarding house in New Madrid, Mo. On December 15, 1930, M. O. Carter qualified as executor of his father R. Y. Carter.
When R Y. Carter was injured in April, 1930, he was brought to Memphis and treated by Dr. Pistole, and a few days later returned to his home in Nashville. On April 29, 1930, R. Y Carter was again in Missouri and was examined by Dr. Mayfield, and on May 23, 1930, he was examined in Missouri by Dr. Marshall.
Plaintiff testified that, after the death of his father, he talked to Dr. Pistole, and was led to believe that his father died from coronary thrombosis resulting from the injury received in April. Thereupon, on March 14, 1931, plaintiff suggested the death of his father, and had the case revived in his name as executor. At the same time he had the declaration amended so as to allege that R. Y. Carter died as a result of the injuries referred to above, and so as to sue for $25,000 instead of $10,000. The case was set for trial on May 27, 1931.
On May 25, 1931, plaintiff took several depositions in Missouri, including those of Drs. Mayfield and Marshall. Both of these physicians testified that the injuries which R. Y. Carter received in the collision in April were not of such a character as would have caused his death in November. The evidence further shows that R. Y. Carter resumed his regular work about two weeks after the accident, and was regularly employed until his death.
Plaintiff testified that after these depositions were taken he again talked to Dr. Pistole, and he was uncertain as to the cause of his father's death. He further testified that he investigated the family history, and learned that his father's family were disposed to heart affections, and reached the conclusion that his father's death did not result from the injury received in April, 1930.
Dr. Pistole testified that plaintiff probably misunderstood him; that he stated that it could not be determined definitely what caused the death of R. Y. Carter without a post mortem examination.
It should have been stated that on May 27, 1931, the trial of the cause was continued until October 14, 1931. When the case was called on the latter date, defendant was permitted to amend its plea so as to rely upon a Missouri statute, which provides that only the surviving wife can maintain a suit for the wrongful death of her husband, and it was averred in the plea that R. Y. Carter was survived by his wife. Thereupon plaintiff was permitted to amend his declaration by striking out that part which averred that his testator died as a result of the injuries received on April 17, 1930, and by charging that R. Y. Carter did not die as the result of said injuries, and to limit the recovery to the damages sustained prior to his death. Under the Missouri statute, such an action can be prosecuted by the executor, but it is otherwise if testator died from such injuries. In the amendment, which was supported by the testimony of plaintiff on the trial, the matter of a change in position was fully explained.
With respect to the merits of the case, we are satisfied that the jury reached a proper verdict, and that, as a matter of fact, R. Y. Carter did not die as a result of the injuries received as detailed above. The question for decision is, Should the plaintiff be precluded from recovering under the doctrine of "shifting positions," or "positive procedure?" This rule is based upon the following statement by Mr. Bigelow in his work on Estoppel (5th Ed.) p. 717, which has been approved by this court in a number of cases, and which is as follows:
It will be observed that the rule applies to inconsistent positions in the trial, and our decisions so limit it. It does not prohibit a party from amending his pleading so as to set up the true facts, when by inadvertence or mistake he has stated the facts incorrectly. Such is a common, everyday practice, and, when made in good faith, such an amendment, in the sound discretion of the trial court, will be allowed. In this particular case plaintiff was not taking inconsistent positions in the trial, but was contending only that his testator did not die from the injuries received when his buggy was struck by the bus of defendant.
In Stamper v. Venable, 117 Tenn. 557, 97 S.W. 812, it was held that a litigant who had contended in the chancery court and in the Court of Chancery Appeals that certain documents were deeds could not in the Supreme Court shift his position and claim that they were wills.
In Stearns Coal & Lumber Co. v. Jamestown R. Co., 141 Tenn. 203, 208 S.W. 334, it appears that complainant charged that defendant was not a corporation, while in another pending suit it had charged that it was a corporation. The court treated the two suits as one, as did the complainant, and applied the doctrine here invoked. Complainant, in the same suit, was contending inconsistently that defendant was and was not a corporation.
At this point it is well to note the distinction between "estoppel" and "positive procedure." In 10 Ruling Case Law, 698, it is said:
In Heggie v. Hayes, 141 Tenn. 249, 208 S.W. 605, 3 A. L. R. 150, it was held that in a seduction case, where defendant's counsel, in argument before the jury, conceded that the plaintiff bore a good reputation, and the case was tried on that theory, he could not, on motion for a new trial, introduce evidence tending to besmirch her character.
In Johnston v. C., N. O. & T. P. Ry. Co., 146 Tenn. 135, 161, 240 S.W. 429, 436, the complainant had testified both ways in the same case as to a material fact. In applying the "positive procedure" rule, the court said:
"We wish to add that we have searched complainant's testimony for an explanation of its inconsistencies that would entitle it, upon grounds of inadvertence or mistake, to some weight on the side of the jury's verdict upon these two issues, but could find none, and that, when for this purpose we went outside of his testimony and looked to his conduct and correspondence before the present difference arose, the impossibility of any such explanation was only emphasized."
On the other hand, in McLemore v. Railroad, 111 Tenn. 639 666, 69 S.W. 338, 344, the court quoted approvingly from Hamilton v. Zimmerman, 37 Tenn. (5 Sneed) 48, as follows: ...
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