Central Produce Co. v. General Cab Co. of Nashville, Inc.

• Decision Date: 08 April 1939
• Parties: CENTRAL PRODUCE CO. et al. v. GENERAL CAB CO. OF NASHVILLE, Inc.
• Court: Tennessee Court of Appeals

129 S.W.2d 1117

23 Tenn.App. 209

CENTRAL PRODUCE CO. et al. v. GENERAL CAB CO. OF NASHVILLE, Inc.

Court of Appeals of Tennessee, Middle Section.

April 8, 1939

Certiorari Denied by Supreme Court June 10, 1939.

Appeal in Error from Circuit Court, Davidson County; Richard P Dews, Judge.

Action by General Cab Company of Nashville, Inc., against Central Produce Company and Willard Head to recover for damages to a taxicab as the result of a collision. Judgment for plaintiff for $500, and defendants appeal in error.

Assignments of error overruled, and judgment of trial court affirmed, and judgment entered for $500 and interest from May 24, 1938, and costs of the cause, including costs of appeal, adjudged against defendants and surety on their appeal bond.

E. D Jackson, of Nashville, for plaintiff in errors Central Produce Co. and others.

O. B Hofstetter, of Nashville, for defendant in error General Cab Co.

CROWNOVER Judge.

This is an action against the Produce Company and Head to recover for damages to an automobile as the result of a collision at a street intersection in the City of Nashville.

The defendants pleaded the general issue of not guilty.

The action was tried to a jury and resulted in a verdict for $500 in favor of the plaintiff and against the defendants, and judgment was entered accordingly.

The defendants' motion for a new trial was overruled and they appealed in error to this Court and have assigned errors, which are, in substance, as follows:

(1) There is no evidence to support the verdict.

(2) The court erred in refusing to charge the defendants' special requests Nos. 1, 2, and 3.

(3) The court erred in charging the jury as follows: "The Court charges you, Gentlemen of the Jury, that at the time of the accident the defendant Willard Head was driving the truck of the defendant Central Produce Company, on the business of the Company, and that said defendant Central Produce Company would be liable along with said Head, if you find him liable under the facts and the further charge of the Court."

(4) The court erred in charging the jury as follows: "The Court charges you that the physical facts shown by the evidence in the case are to be considered by you along with the other evidence in determining how the accident occurred. That is to say, the injuries to the two cars, the car and the truck, and their positions in the street immediately following the accident should be considered by you as tending to show how the accident happened."

(5) The court erred in charging the jury as follows: "If you find from a preponderance of all of the evidence in the case that the plaintiff was guilty of contributory negligence, that is, if he failed to exercise ordinary care for his own protection, and such failure contributed in any degree directly as the proximate cause of the injury, then the plaintiff cannot recover in this suit and your verdict should be in favor of the defendant."

(6) The court erred in charging the jury as follows: "In the event you find for the plaintiff, you must find against both defendants."

(7) The verdict is so excessive as to show passion, prejudice, and caprice on the part of the jury.

The collision out of which this action arose occurred at the intersection of Eighth Avenue North and Jo Johnston Avenue at about 5 o'clock in the morning, on Saturday, May 9, 1936.

Eighth Avenue leads north and south and is an arterial highway. It is paved with concrete pavement and is about 32 feet wide. Jo Johnston Avenue leads east and west, is paved with cobble stones, and is about 22 feet wide.

A taxicab belonging to the plaintiff General Cab Company was being driven north on Eighth Avenue by its employee carrying a passenger to some place in North Nashville.

A truck belonging to the Central Produce Company was being driven by its employee, Willard Head, west on Jo Johnston Avenue, carrying a load of merchandise.

The two vehicles collided in the intersection, a little west of the center. After the impact the taxicab ran into a pole which was standing on the northeast corner of the intersection; the truck ran into a pole on the same corner about 10 feet north of the pole which was struck by the taxicab.

The Cab Company's motion to affirm the judgment because it does not affirmatively appear that the bill of exceptions and the exhibits were authenticated by the trial judge within the time allowed by law and by his order must be sustained.

The trial judge affixed his signature to the bill of exceptions, but it is not shown on what date he signed it. The Clerk of the Court indorsed on it "Filed, July 12, 1938," and signed his name as clerk. This was within the time allowed by the court for the filing of the bill of exceptions, but it is not evidence that the judge signed it within the time required.

The writing does not become a bill of exceptions until signed by the trial judge. Tennessee Procedure by Higgins & Crownover, sec. 1918; Southern Ry. Co. v. Underwood, 8 Tenn.App. 142. And it must affirmatively appear that it was authenticated by his signature within the time allowed by law and by the court. Tennessee Procedure by Higgins & Crownover, sec. 1918; Cosmopolitan Life Ins. Co. v. Woodward, 7 Tenn.App. 394; Southern Ry. Co. v. Underwood, 8 Tenn.App. 142.

It also appears that the exhibits were not attached to the bill of exceptions and were merely marked "Identified, Dews, Judge." This is not sufficient, as it must appear that he authenticated them within the time allowed. Cosmopolitan Life Ins. Co. v. Woodward, 7 Tenn.App. 394, 402.

In the recent case of Moore v. Chadwick, 170 Tenn. 223, 94 S.W.2d 49, the bill of exceptions was held sufficient, although the date on which it was signed by the judge did not appear, because the record as a whole showed that his signature was affixed within the time allowed. But in the present case the record does not show this.

It results that the motion to affirm the judgment must be sustained.

This disposes of the case, but as it may be carried to the Supreme Court, we will pass on the assignments of errors.

1. The defendants' first assignment of error, that there is no evidence to sustain the verdict, is not well made and must be overruled.

The declaration contained three counts. In the first count the plaintiff averred that the defendant Produce Company's servant negligently and carelessly drove its truck into the street intersection in such manner as to cause it to collide with the plaintiff's cab. In the second count it is averred that the defendants violated a city ordinance requiring vehicles to come to a full stop before entering an arterial highway. In the third count it is averred that the defendants violated a city ordinance providing that no vehicle shall exceed a speed of 15 miles an hour at a street intersection. The said ordinances were copied into the declaration.

During the trial the following colloquy between counsel about the ordinances occurred:

"Mr. Hofstetter: Mr. Jackson on this question of the City Ordinance--

"Mr. Jackson: We will stipulate about that, we will read the city ordinance, whatever you say. I want it read to the jury, however.

"The Court: Of course."

But only a part of a city ordinance regulating vehicles crossing or turning into arterial highways was read to the jury, and the record does not show that that part of it requiring vehicles to come to a full stop before entering the intersection was read, or that the city ordinance fixing the speed of vehicles in street intersections was read to the jury.

These ordinances should have been proved. Rutherford v. Swink, 90 Tenn. 152, 16 S.W. 76.

The trial judge instructed the jury as to the liability of the defendants under the common law and for violation of the ordinances, and quoted the ordinances as set out in the declaration, to which the defendants made no objection.

No demurrer was filed and no motion in arrest of judgment was made in the trial court.

But, as above stated, counsel for the defendants stated that the ordinances might be stipulated. The trial judge upon this assumption charged the ordinances as set out in the declaration, and the defendants sat by and made no objection, hence we think they are bound by the statement of their attorney as he led the plaintiff to think that they were admitted in evidence by stipulation.

Where the trial court does not give instructions covering a party's theory it is his duty to request a correction. Elkin Motor Co. v. Ragland, 6 Tenn.App. 166, 167; Hamilton v. Carter, 14 Tenn.App. 337; Nashville Gas & Heating Co. v. Phillips, 17 Tenn.App. 648, 69 S.W.2d 914.

Hence we hold that the defendants cannot now deny that the ordinances were duly admitted in evidence.

We hold that the averment of negligence in the first count is a sufficient statement of a cause of action, in the absence of a demurrer or motion in arrest of judgment, and evidence of negligence will sustain a verdict where the evidence was not excepted to. Tennessee Procedure by Higgins & Crownover, secs. 486, 549; East Tennessee Coal Co. v. Daniel, 100 Tenn. 65, 73, 42 S.W. 1062; East Tennessee, Va. & Ga. R. Co. v. Pratt, 85 Tenn. 9, 1 S.W. 618, explained in Cotton Oil Co. v. Shamblin, 101 Tenn. 263, 271, 47 S.W. 496.

The verdict must be applied to those counts of the declaration that are supported by evidence. Tennessee Central R. Co. v. Umenstetter, 155 Tenn. 235, 291 S.W. 452.

However, we hold that there was evidence to sustain all three counts.

There were only two eye-witnesses to the collision--the driver of the taxicab and the driver of the truck.

Moore the driver of the taxicab testified that he was traveling north on Eighth Avenue North; that when he reached the intersection of Cedar...