Claxton v. Claxton

• Decision Date: 13 November 1931
• Citation: 64 S.W.2d 854
• Parties: CLAXTON et al. v. CLAXTON et al.
• Court: Tennessee Supreme Court

64 S.W.2d 854

CLAXTON et al. v. CLAXTON et al.

Court of Appeals of Tennessee, Eastern Section.

November 13, 1931.

Certiorari Denied by Supreme Court March 17, 1932.

Appeal in Error from Law Court, Knox County; A. C. Grimm, Judge.

Actions by Reeves Claxton and another, and by Swink Hicks, by Guardian W. W. Hicks, against C. D. Claxton and another were tried together in the trial court and brought to the appellate court by appeal in error by the defendants from judgments rendered against them on verdicts of a jury. The judgment in each case was for damages awarded against the defendants that were sustained in an automobile wreck while the parties on the 5th day of October, 1929, were on their way from Knoxville to Chattanooga to attend a baseball game. Judgment recovered in the case of Reeves Claxton and another was for $500, while that recovered by Swink Hicks by Guardian W. W. Hicks was for $250. After their motion for a new trial was made and overruled, the appeals indicated were prayed for, obtained, and perfected to Court of Appeals.

Judgment for $250 affirmed; judgment for $500 affirmed with a conditional modification.

A. Y. Burrows and Fred G. Asquith, both of Knoxville, for plaintiff in error.

E. H. Marsh and L. M. G. Baker, both of Knoxville, for defendants in error.

SNODGRASS, Judge.

There are eight assignments of error.

The first is to the effect that the court erred in submitting the case to the jury because it is insisted there was no evidence in the case to sustain the verdict of the jury.

The second assignment is to the effect that the evidence greatly preponderated against the verdict of the jury. This being a jury case, the second assignment is not available here because our only review of the jury's verdict on the facts is to ascertain as to whether or not there is any evidence to support it, and, if so, their determination as to the preponderance of the evidence supported by a concurrence of the court is conclusive on that point.

The third assignment that "the Court erred in not directing the jury that the contributory negligence of the defendants in error, their utter indifference to a duty that the law casts upon them, was the proximate cause of the injury," would have been to invade the province of the jury, whose duty it was to find the facts upon such issue, and to have assumed their existence as claimed would not have been authorized except upon their indisputable appearance in the proof in such way as that there could have been no disagreement in relation thereto. This assignment therefore becomes only a circumstance to be considered in the disposition of the first assignment.

The reason assigned for the fourth assignment does not support it, for, while it may appear that the grounds of liability may be the same as urged in each claim for damages, it does not necessarily follow that the injuries were the same or that the recoveries in each case should be identical. However, any merit that might be involved in this insistence should be considered on the merits involved in the first assignment.

Assignments 5 and 6 relate to alleged error in the charge and refusal to charge. To put the court in error for any refusal to charge specifically, it must appear that he was reasonably and seasonably so requested to charge and refused to do so. The record fails to present any evidence of any such declination as insisted in the sixth assignment, which is for this reason overruled. Assignment No. 5 will be further considered in the investigation of the first assignment, in which also can be disposed of assignments 7 and 8.

We have examined the record and find the facts to be that on Saturday, October 5, 1929, as the declaration alleges, the two defendants in each case, C. D. Claxton and Otis McWhirter, being owners of the car in which they were riding, and being both present and in control of the car (though at the time of the accident McWhirter was driving), in company with plaintiffs in each suit, who were riding in the back seat of the car, were, in the forenoon of the day, proceeding to Chattanooga for the purpose of attending a baseball game; that the plaintiffs were their guests and being carried to see the game by invitation of these owners, and were subjected to no charge or obligation by virtue of such invitation, but were riding in the car as guests of the two owners, and, while the object of the journey to see the game was joint, the enterprise was in no sense of such a joint nature as...