Cummins v. Woody

• Decision Date: 14 June 1941
• Citation: 152 S.W.2d 246,177 Tenn. 636
• Parties: CUMMINS et al. v. WOODY et al.
• Court: Tennessee Supreme Court

152 S.W.2d 246

177 Tenn. 636

CUMMINS et al. v. WOODY et al.

Supreme Court of Tennessee.

June 14, 1941

Error to Law Court, Washington County; Ben Allen, Judge.

Action by Fred Woody, administrator of the estate of Mildred Lois Woody, deceased, against J. W. Cummins and others to recover for the wrongful death of the deceased in an automobile accident, wherein John C. White intervened. To review a judgment of the Court of Appeals affirming a judgment in favor of the intervener, the defendants bring certiorari.

Writ denied.

Carl Langhammer Guinn & Mitchell, all of Johnson City, and Poore Kramer & Cox, of Knoxville, for plaintiffs in error.

Simmonds & Bowman and Don Gray, all of Johnson City, for defendants in error.

PREWITT Special Judge.

This case is before the Court on a petition for certiorari. The plaintiffs in error, J. W. Cummins and others, hereinafter referred to as defendants, seek to have the judgment of the Court of Appeals affirming the judgment of the trial court awarding a recovery of $2,000 to John C. White reversed.

Mildred Lois Woody, an infant of five years, was struck and killed by a truck owned by the defendant Cummins and driven by his agent and driver Neas. The collision took place on February 21, 1940, and happened on the south side of the pavement leading from Johnson City to Elizabethton, in Washington County. The child crossed the highway which ran east and west for the purpose of going to the mail box which was about two or three feet south of the south margin of the pavement. The truck was running east and the side of the vehicle struck the child's head and killed it instantly. The child's legal father lived in Washington, D. C., but the deceased was adopted by Mr. and Mrs. Fred Woody some two or three years before she lost her life and had made her home continuously with the adopting parents. These parties lived on the north side of this pavement and it seems that Mrs. Woody watched the child go across the road to the mail box and the first thing she knew the child was killed.

On March 2, 1940, Fred Woody qualified as administrator of the estate of the deceased infant and on Sunday, March 3, 1940 Fred Woody and his wife and a preacher by the name of Tester met the defendants' attorney in his room at a hotel in Johnson City and agreed to settle the claim for $600. It developed that Mr. Woody had consulted an attorney, but it does not appear that he was present when the settlement was made and the record indicates that his attorney thought he was entitled to considerably more money. The attorney for the plaintiff administrator finally agreed to this settlement on the basis of $700, $500 to the administrator and $200 to himself.

On Monday morning, March 4, 1940, the plaintiffs' attorney went to the office of the attorney for the defendants and it seems that at that time the latter had already drawn the declaration. They immediately went to the courthouse and filed this declaration and also filed the plea of the defendants and judgment was entered for the $500. Within about thirty days thereafter John C. White came to Johnson City and filed an intervening petition, which the court permitted him to maintain in the case, and a new trial was granted and resulted in another trial in which the legal father was awarded a recovery of $2,000.

Thereupon defendants made a motion for a new trial, which was overruled, and an appeal was prayed and perfected to the Court of Appeals, the judgment of the trial court was affirmed, and, as before stated, the case is now here on the petition of Cummins, the owner of the truck, and Neas, the driver, on certiorari.

The principal questions presented are (1) whether the trial court was in error in not sustaining defendants' motion for a directed verdict, and (2) that the lower court erred in permitting the plaintiff John C. White to file his intervening petition, and in holding that the settlement between the parties thereto was not binding on John C. White the legal father.

We have gone into the record thoroughly on the question of the granting of the motion for a directed verdict, and we feel that there was material evidence to carry the case to the jury. There was proof that Neas was driving the truck at a very fast rate of speed and that he made no effort to slow down when he saw the child or could have seen it, and, further, it appears that there was some sort of a lever or iron bar protruding out of the right side of the truck which from the proof evidently hit the child and caused her death. We think then that the trial court was clearly right in submitting the matter to the jury.

The defendants also objected to the action of the trial judge in permitting the plaintiff John C. White to file his intervening petition. However, the defendants concede in their brief that this matter...