Dill v. Gamble Asphalt Materials

• Decision Date: 02 November 1979
• Citation: 594 S.W.2d 719
• Parties: Virginia DILL, Appellee, v. GAMBLE ASPHALT MATERIALS et al., Appellants. Jessie Yvonne DILL et al., Appellees, v. GAMBLE ASPHALT MATERIALS et al., Appellants. Bonnie SKINNER et al., Appellees, v. GAMBLE ASPHALT MATERIALS et al., Appellants. Ruby Cauline MATHIS et al., Appellees, v. GAMBLE ASPHALT MATERIALS et al., Appellants.
• Court: Tennessee Court of Appeals

Page 719

594 S.W.2d 719

Virginia DILL, Appellee, v. GAMBLE ASPHALT MATERIALS et al., Appellants.

Jessie Yvonne DILL et al., Appellees, v. GAMBLE ASPHALT MATERIALS et al., Appellants.

Bonnie SKINNER et al., Appellees, v. GAMBLE ASPHALT MATERIALS et al., Appellants.

Ruby Cauline MATHIS et al., Appellees, v. GAMBLE ASPHALT MATERIALS et al., Appellants.

Court of Appeals of Tennessee, Eastern Section.

Nov. 2, 1979.

Rehearing Denied Nov. 20, 1979.

Certiorari Denied by Supreme Court Jan. 28, 1980.

William B. Luther of Luther, Anderson, Cleary & Cooper, Chattanooga, for appellant, Gamble Asphalt Materials.

William L. Brown and Gene R. Griffin of Brown, Brown & Griffin, Chattanooga, for Virginia Dill.

Edward E. Davis and Robert J. Batson, Jr., Chattanooga, for Jessie Yvonne Dill, Bonnie Skinner and Ruby Cauline Mathis.

OPINION

PARROTT, Presiding Judge.

Appellees brought these actions seeking damages for injuries they suffered when a 1969 Ford tandem dump truck operated by Richard Paul Davis crashed into the rear of Jessie Dill's automobile. Jessie Dill had stopped her car in response to a flagman who was overseeing the flow of traffic around some road construction that was being performed at that time. Davis, proceeding northward on Highway 127, was unable to stop his truck which was loaded with asphalt mix and struck the 1964 Oldsmobile being operated by Jessie Dill and occupied by Ruby Mathis, Bonnie Skinner, and Virginia Dill.

This suit charges Richard Paul Davis, the operator of the dump truck, with negligence in the operation of his truck. Specifically, appellees urge that Davis violated T.C.A. 59-824(a) (following too closely); 59-858(a) (reckless driving); and 59-1109 (maximum weight allowed). Appellees further aver negligence on the part of Gamble Asphalt Materials, Inc. It was Gamble Asphalt Materials which had loaded Davis' truck with the asphalt mix. Appellees contend that Gamble was negligent in that they loaded the truck beyond its rated capacity and thereby created the dangerous condition which eventually led to the accident in which the appellees suffered their injuries.

In the trial below, the jury returned a verdict in favor of all plaintiffs against both defendants. Virginia Dill was awarded $325,000; Jessie Dill was awarded $15,000 for personal injuries, and $5,000 property damages remitted to $650; Howard Dill was awarded $7,500; Bonnie Skinner was awarded $150,000; James C. Skinner was awarded $50,000; Ruby Mathis was awarded $75,000; and Harry Mathis was awarded $50,000. The occupants of the car were awarded damages as compensation for their injuries and, in the case of Jessie Dill, for property loss as well. The awards to Howard Dill, James C. Skinner, and Harry Mathis were for their wives' medical expenses and for loss of services. The jury further found, in response to issues presented to it by the court, that (1) Richard Paul Davis was an independent contractor, and (2) Gamble Asphalt Materials, Incorporated, was guilty of independent proximate negligence in overloading the truck. From these findings, only Gamble Asphalt Materials, Incorporated, appeals.

Appellant in this Court has assigned several errors. The primary issues presented by this appeal deal with the trial court's charge to the jury, the admission of certain evidence below, and a prayer for this Court to grant remittiturs as to the damages awarded.

For the reasons to be given, all assignments of error are overruled except the ones dealing with the propriety of a remittitur of the awards to James Skinner and Harry Mathis for loss of services and expenses.

Appellant's first four assignments of error deal with the jury charge given in the court below. In relevant part, the judge charged:

I further charge you that as a general proposition of law, everyone owes to everyone else the duty of exercising ordinary care not to injure anyone, either in their person or property. In this connection I charge you that the corporate defendant or defendants who loaded or was or were responsible for loading the truck involved in this accident had the duty to refrain from overloading the truck and to take due precaution in this connection, thereby to the extent that it might be reasonably foreseeable that any overloading would likely result in injury to others of a like general character to the injuries sustained by the plaintiffs in this action. If they or one of the corporate defendants breached such a duty, then they or the one who breached the duty would be guilty of negligence, and if the negligence was a direct and proximate cause of the plaintiff's injuries and damages, then they or the one who breached the duty would be liable unto the plaintiffs.

Appellant's primary contention is that the trial judge invaded the province of the jury by instructing them that Gamble had ". . . the duty to refrain from overloading the truck and to take due precaution in this connection . . . ." Specifically, the appellant urges that the question as to whether a duty was owed by Gamble to anyone else is strictly a jury question and not one to be resolved by the court.

The appellant's contention on this point flatly misstates the law. In any action grounded in negligence, the existence or nonexistence of a duty on the part of the defendant ". . . is entirely a question of law, to be determined by reference to the body of statutes, rules, principles, and precedents which make up the law; and it must be determined only by the court." (Emphasis added.) W. Prosser, Law of Torts, § 37 (4th ed. 1971). Since the issue of whether or not a duty exists is a question of law, the court below following the common law maximum of "Ad questionem legis non respondet juratores" did not invade the province of the jury by its determination that there was indeed a duty owed by Gamble and by charging the jury accordingly. Glenn v. Conner, 533 S .W.2d 297, 302 (Tenn.1976).

Appellant further attacks the jury charge below by asserting that the practical effect of the charge was to direct a verdict for the plaintiffs. Gamble contends that since it was uncontroverted in the evidence presented that Davis' truck was indeed overloaded by Gamble's employees and further that since the jury was charged that Gamble had the duty not to overload the truck, the effect of the charge was to direct a verdict against the defendant on the issue of negligence.

Contrary to the appellant's contention, the judge below did not direct a verdict in favor of the plaintiffs on the issue of negligence. The jury below had to find more than a mere breach of duty; in order for any plaintiff to recover from any defendant under a theory of negligence, proximate cause and ...