Chickasaw Wood Products Co. v. Lane

• Decision Date: 19 November 1938
• Citation: 125 S.W.2d 164
• Parties: CHICKASAW WOOD PRODUCTS CO. v. LANE.
• Court: Tennessee Supreme Court

125 S.W.2d 164

CHICKASAW WOOD PRODUCTS CO. v. LANE.

Court of Appeals of Tennessee, Middle Section.

November 19, 1938.

Certiorari Denied by Supreme Court March 4, 1939.

Appeal in Error from Circuit Court, Rutherford County; T. L. Coleman, Judge.

Action by Thomas Lane against J. W. Arnold and another for injuries sustained in an automobile collision. From an adverse judgment, defendant Chickasaw Wood Products Company appeals in error.

Affirmed.

Nelson & Rhem, of Memphis, and Turner & Haston, of McMinnville, for plaintiff in error Chickasaw Wood Products Co.

C. C. Jackson, George Buckner, and Howell Washington, all of Murfreesboro, for defendant in error Lane.

CROWNOVER, Judge.

This is an action for damages for personal injuries sustained by Thomas Lane when the automobile of J. W. Arnold, in which he (Lane) was riding as a guest, collided with a truck belonging to the Chickasaw Wood Products Company, and driven by its agent, on the Tullahoma-Shelbyville highway at night. At the time of the collision Lane was asleep.

Arnold was at the time a resident of Rutherford County. The home office of the Chickasaw Wood Products Company was in Shelby County.

Lane instituted suit in Rutherford County against Arnold and the Chickasaw Wood Products Company; summons was served on Arnold, and upon return being made that the Chickasaw Wood Products Company was not to be found in Rutherford County, counterpart summons was issued to Shelby County for the Chickasaw Wood Products Company and served upon it in that county.

The declaration contained two counts.

It was averred in the first count that defendant Arnold negligently applied his brakes, without any reason, which caused his automobile to skid and caused the collision; and that the defendant Products Company was guilty of negligence in driving the truck against Arnold's automobile without veering to the left so as to pass Arnold's automobile.

In the second count it was averred that Arnold and the Products Company violated Code, sec. 2681, in driving the motor vehicles recklessly and in wilful and wanton disregard of the rights and safety of others, without due caution, which endangered the life of the plaintiff. It was also averred that the statute was further violated, in that, the truck was driven at a fast and reckless rate of speed, without being kept under control, and without proper lookout ahead, and without giving half of the road, etc.

Both defendants pleaded the general issue of not guilty.

When the case was called for trial the defendant Chickasaw Wood Products Company presented its plea in abatement to the court duly verified, and moved the court to be allowed to withdraw its plea of the general issue and to be allowed to file the said plea in abatement to the jurisdiction of the Rutherford County Circuit Court on the ground that since the plea of the general issue was filed the defendant had discovered that J. W. Arnold, a resident of Rutherford County, was made codefendant in this cause merely for the purpose of obtaining counterpart summons for the defendant Chickasaw Wood Products Company in Shelby County and forcing it to trial in Rutherford County, the home of the plaintiff; that Arnold was not a material defendant; and that there was collusion between the plaintiff and said codefendant Arnold to give jurisdiction to the Rutherford County Circuit Court; therefore the process was void and the court had no jurisdiction of the defendant.

The court overruled the motion and refused to permit the plea in abatement to be filed, on the ground that it came too late, to which action the defendant Products Company excepted.

The case was tried to a jury. At the close of the evidence for the plaintiff the Chickasaw Wood Products Company moved the court to be allowed to file an additional plea averring contributory negligence on the part of the plaintiff, which was permitted.

At the close of all the evidence the defendant Chickasaw Wood Products Company renewed its motion to be allowed to withdraw its plea of the general issue and to be allowed to file a plea in abatement and that the summons and declaration be quashed. In support of the motion it was contended that the codefendant Arnold's plea was filed on the day of the trial by Barton Dement, Jr., and that the summons and the declaration filed for the plaintiff Lane showed that Dement was one of his (Lane's) attorneys of record.

This motion was again overruled on the ground that it came too late.

At the close of all the evidence the Chickasaw Wood Products Company renewed its motion which was made at the close of the evidence for the plaintiff, for peremptory instructions in its favor on the grounds (1) that no negligence on its part was shown by the evidence; (2) that the plaintiff Lane was guilty of contributory negligence as a matter of law; and (3) that there was a variance between the averments of the declaration and the evidence — which motion was overruled.

J. W. Arnold made a motion for a directed verdict at the close of the plaintiff's evidence, which motion was overruled. He renewed his motion at the conclusion of the evidence on the ground that the evidence showed that he was not guilty of negligence, and that the collision was caused by the negligence of the Chickasaw Wood Products Company, and that the plaintiff was guilty of contributory negligence as a matter of law — which motion was overruled.

The jury returned a verdict for $3000 in favor of the plaintiff and against both defendants, and judgment was entered accordingly.

Arnold did not appeal in error.

The Chickasaw Wood Products Company filed a motion for a new trial, which was overruled, to which action of the court it excepted, and appealed in error to this court, and has assigned errors, which are, in substance, as follows:

(1) There is no evidence to sustain the verdict, and the court erred in refusing to direct a verdict in favor of this defendant.

(2) The plaintiff was guilty of contributory negligence as a matter of law.

(3) The court erred in refusing to permit this defendant to withdraw its plea of not guilty and file a plea in abatement to the jurisdiction of the court.

(4) The court erred in a portion of his charge to the jury which was as follows:

"Now the contention of the plaintiff is * * *

"That he knew the defendant, J. W. Arnold, believed he was a careful driver of an automobile, that he understood how to drive an automobile, had had experience, and he relied upon him as being a careful driver, and that he laid down on the back seat, it being late at night, and went to sleep."

This charge was not borne out by the evidence.

(5) The verdict was so excessive as to indicate passion, prejudice, and caprice on the part of the jury.

The plaintiff Thomas Lane, aged twenty-five years, J. W. Arnold, of the age of thirty-seven years, and Marvin Wooten, all lived in Murfreesboro, and were employed by the Brothers Stores.

On the morning of May 12, 1937, Thomas Lane was transferred to the company's store at Tullahoma. During the day it was decided to send him back to the Murfreesboro store. He telephoned Arnold and asked him to come for him and drive him back to Murfreesboro. Arnold told him that he and Wooten had engagements with two young ladies in Tullahoma that evening and suggested that he drive back with them that night, to which he agreed.

The three men left Tullahoma at about 12 o'clock at night.

Arnold was driving his father's automobile. Wooten was seated on the front seat beside him, and Lane was on the back seat.

Arnold had been driving automobiles for about ten years.

When they had traveled about a mile, Lane went to sleep.

It had been raining for about two hours.

A part of the highway between Tullahoma and Murfreesboro is paved with asphalt which becomes slick and slippery in rainy weather. The State Highway Department has erected signs along the highway warning motorists of this condition in rainy weather.

At a point about 4 or 5 miles from Tullahoma Arnold saw a truck just ahead of him without a rear light and saw another truck approaching him. A truck belonging to the defendant Chickasaw Wood Products Company was traveling on the highway towards Tullahoma. Thinking he would not have room to pass between the two trucks, Arnold applied his brakes. His car skidded on the wet pavement, spun around and was struck in the rear by the truck, knocked off the highway into the ditch, and Lane was injured.

The witnesses to the collision were Wooten, witness for the plaintiff, the defendant Arnold, and Delcy Pryor, the driver of the defendant Chickasaw Wood Products Company's truck.

Wooten testified that a truck was just ahead of Arnold's car, traveling in the same direction, with no tail light burning; that when he first saw the truck Arnold's car was within 10 or 15 feet of it; that at that time the Chickasaw truck, which was approaching them, was 150 yards away; that Arnold applied his brakes and the car skidded and turned completely around headed back toward Tullahoma, and the Chickasaw truck struck it in the rear and knocked it across the road into the ditch at the left; that after the car turned around it was traveling on its right side of the road with the two right wheels on the shoulder; that there were no other cars passing, the road was straight for some distance here, and there was plenty of room for this truck to have gone around, to the left of the automobile; that there were skid marks 40 feet behind the point of the collision, made by dual wheels, and the Chickasaw truck had dual wheels.

Arnold testified that he was driving at a speed of about 35 miles an hour; that he was unable to see the moving truck without tail light, in front of him, until he was within 10 or 15 feet of it; that the approaching Chickasaw truck was about 150 yards away; that he applied his brakes and his car skidded and began to spin; that he put it into second gear as it turned completely around headed...