Chumley v. Anderton

• Decision Date: 10 October 1936
• Parties: CHUMLEY v. ANDERTON.
• Court: Tennessee Court of Appeals

103 S.W.2d 331

20 Tenn.App. 621

CHUMLEY v. ANDERTON.

Court of Appeals of Tennessee, Middle Section.

October 10, 1936

Certiorari Denied by Supreme Court March 27, 1937.

Appeal in Error from Circuit Court, Franklin County; L. R. Darr Judge.

Action by Dr. M. W. Anderton against H. Chumley. Judgment for the plaintiff, and both parties appeal in error.

Affirmed and rendered.

Trabue Hume & Armistead, of Nashville, and J. Roy Hickerson, of Winchester, for plaintiff in error.

Walker & Hooker, of Nashville, and Lynch, Haynes & Green, of Winchester, for defendant in error.

DEWITT Judge.

In this action Dr. M. W. Anderton, a dentist of Winchester, was awarded by a jury a verdict for $15,000 against H. Chumley as damages for personal injuries sustained from the alleged negligence of Chumley while they were riding on Michigan avenue in the city of Detroit, Mich., in a Ford car owned and driven by Chumley, at about 2 o'clock in the morning of January 15, 1935. No testimony was offered by the defendant. In his behalf, however, a motion for peremptory instructions was made and overruled. Conceiving that the evidence showed without contradiction, and by any reasonable inference therefrom, that as a matter of law the defendant was guilty of actionable negligence, the trial judge, of his own motion, instructed the jury to find that the defendant was liable to the plaintiff; and he submitted to the jury only the question of the amount of damages to be awarded. A motion for a new trial was overruled, with the exception that a remittitur of $3,000 was suggested and this was accepted under protest. Judgment was thereupon entered for $12,000 and costs. Both parties have appealed in error--the plaintiff complaining of the remittitur, the defendant of the judgment.

The defendant in error (herein called plaintiff, as below) is not in a position in this court to complain of the remittitur, because it does not affirmatively appear that it was based on passion, prejudice, or caprice on the part of the jury. It seems to have been due to mere excessiveness, error of judgment, and not to the aforesaid motives. Under Code, § 8987, it is only when it appears that the ground for suggestion of remittitur was passion, prejudice, caprice, or corruption on the part of the jury that the plaintiff may accept under protest and challenge the remittitur on appeal in error. It is that statute which affords to a plaintiff any right to such appeal; and the acceptance of a remittitur which is not suggested on the grounds named in the statute is binding on the plaintiff and the question cannot then be raised on appeal. Yarbrough v. Louisville & N. R. Co., 11 Tenn.App. 456. The plaintiff's assignment of error must be overruled.

In behalf of the plaintiff in error (hereinafter called defendant as below), it is insisted that his motion for peremptory instructions should have been sustained, and that it was error to direct the jury to return a verdict in favor of the plaintiff upon the issue of liability.

As to the relationship between the parties and the cause of the injuries, the following facts appear without dispute:

Chumley, also a resident of Winchester and a friend of Dr. Anderton, owned and operated the Winchester Motors Company which had the agency for the sale of Ford automobiles in Franklin county, Tenn. Dr. Anderton had previously purchased some two or three Ford automobiles from him. In November, 1934, Dr. Anderton entered into a contract with Chumley for the purchase of a new 1935 model Ford Tudor sedan and at that time as a part payment therefor he delivered to Chumley at an agreed valuation his 1933 model Ford automobile, but the 1935 model car which Chumley agreed to deliver to Dr. Anderton in Winchester was then in the course of manufacture and was not on the market for sale for delivery in Franklin county. Just when it would be ready for delivery was not apparent to them. Dr. Anderton was very desirous of having this new car and Chumley wanted to obtain as soon as he could the money which Dr. Anderton was to pay him as a balance of the purchase price. Chumley intended to go to Detroit, Mich., in January to attend a meeting of automobile dealers. He invited Dr. Anderton to go with him, but the invitation was declined. About one week later he again extended the invitation, whereupon Dr. Anderton told him that he would go with him if Chumley would endeavor to procure in Detroit delivery of the new car, pay all the expenses of the trip, and agree that Dr. Anderton would drive the new car from Detroit to Winchester, at which latter place delivery would be accepted. Chumley agreed to this proposition and by virtue of the agreement they left Winchester early on Sunday, January 13, 1935, in a car owned and driven by Chumley, arriving at Detroit that evening. They registered at a hotel. The next morning Chumley took Dr. Anderton to a Ford Agency in Detroit operated by Mr. Cortz, to whom Chumley had a letter of introduction. Mr. Cortz was a former secretary to Mr. Henry Ford. Dr. Anderton did not know him. The new 1935 Ford Tudor sedan, which Dr. Anderton and Chumley were interested in obtaining in Detroit, was being manufactured by the Ford Factory and several of such cars were upon the streets of Detroit at that time.

The price which Dr. Anderton was to pay for the new car included the regular transportation charges from the factory to Winchester. Dr. Anderton wanted the car as soon as he could get it as he had delivered his old car to Chumley some weeks before. Chumley wanted Dr. Anderton to drive the car to Winchester because the expense thereof, plus the other expenses of Dr. Anderton's trip, would be less than the cost of the freight from Detroit to Winchester. Chumley, as aforesaid, had also the motive of getting the balance of the purchase price as soon as possible. The title to the car was not to pass until it should reach Winchester and the sale consummated.

When they interviewed Mr. Cortz, he could not give them any assurance as to getting the car, but Chumley believed that he might be able to do so and impressed Dr. Anderton with the idea that Mr. Cortz would have special influence in getting the car. Mr. Cortz sent them to visit the Ford Motor Company's factory. Upon their return they revisited Mr. Cortz and he invited them to his home for dinner. Dr. Anderton told Chumley that as he was a stranger he did not want to go, but upon Chumley's insistence he agreed to go. Chumley gave as the reason for his insistence that if they would talk to Mr. Cortz they might be able to accomplish something through him, although the prospect did not seem favorable and yet they would talk to him further. This was Dr. Anderton's purpose in accepting the invitation. About an hour and a half after the dinner, they went with Mr. and Mrs. Cortz, at their invitation, to a club to witness some sort of entertainment. When this was over at a late hour, Dr. Anderton and Chumley started back toward their hotel, first taking Mr. and Mrs. Cortz to their home. From there Chumley drove his car toward the hotel. Dr. Anderton was on the front seat with him. It was after midnight. They drove along a wide street, known as Michigan avenue, westwardly toward the hotel. Along this avenue were two parellel street car tracks. At intersecting streets were safety zones, several of which they passed before the accident occurred. Chumley was driving at the rate of about 40 miles an hour. The traffic on the street was light. At one time Dr. Anderton requested Chumley not to drive quite so fast, and he slowed up, but quickened the speed again. They were approaching Cicotte avenue, an intersecting street where was one of the safety zones. It was well lighted from a pole. About a foot to the right of the pole there was a line of small iron poles marking off the safety zone, one of these being at a corner and at the end toward them. When they were about at that intersection, Chumley undertook to pass around the left of a car in front of him going in the same direction, and crashed his car into that iron pole at the corner, bending it considerably. Dr. Anderton was very painfully and seriously injured from the impact.

The lights were burning on Chumley's car and there was no obstruction to his view of the safety zone and the post. In trying to pass the car at that place, he just did not miss the post.

In behalf of Chumley, a defense made below and insisted upon here was and is that Dr. Anderton was the guest of Chumley in the car; that the undisputed evidence showed that the accident was not caused by the gross negligence of wanton and willful misconduct of Chumley; that Chumley was therefore not liable, because of the statute of the state of Michigan in force, which is as follows (Comp.Laws Mich. 1929, § 4648):

"That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought."

The trial judge was of the opinion that this statute was not applicable to the facts of this case, because Dr. Anderton was not a guest, the parties being at the time engaged in the furtherance of a common purpose, mutual to them, in the consummation of which each would receive substantial benefits. This court is of the opinion that this was not error. This undisputed evidence warrants only the conclusion that Dr. Anderton was not a mere guest. The...