Dukes v. McGimsey

• Decision Date: 21 June 1973
• Citation: 500 S.W.2d 448
• Parties: Edgar DUKES, Individually and Lisa Marie Dukes b/n/f Edgar Dukes, Appellees, v. Robert L. McGIMSEY, Terry Shumate and (Virginia McGimsey Shumate, appellant), Appellant.
• Court: Tennessee Court of Appeals

Page 448

500 S.W.2d 448

Edgar DUKES, Individually and Lisa Marie Dukes b/n/f Edgar Dukes, Appellees, v.Robert L. McGIMSEY, Terry Shumate and (Virginia McGimsey Shumate, appellant), Appellant.

Court of Appeals of Tennessee, Western Section.

June 21, 1973 Certiorari Denied by Supreme Court Oct. 1, 1973.

James A. Ridley, III, Knoxville, for appellantVirginia McGimsey shumate.

Hugh F. LaRue, III, Flynn & Flynn, Knoxville, for appellees.

MATHERNE, Judge.

The issue on appeal is whether, under the facts, there was a negligent entrustment of an automobile.

The facts are that the defendant-appellantVirginia McGimsey Shumate is the wife of the codefendant Terry Shumate.Prior to the marriage of the parties, but while they were engaged to be married, the defendantVirginia McGimsey did loan her automobile to her fiance Terry Shumate.While the loaned vehicle was in the possession of Terry Shumate, he became intoxicated and collided with the vehicle of the plaintiffs causing the damage for which suit is brought.

Terry Shumate was 18 years of age at the time.He had no driver's license, which fact was known to Virginia McGimsey.Virginia testified that Terry had at that time been recently discharged from the armed services, and she supposed he had just not applied for a driver's license.Virginia further testified that when the parties were on dates she would normally drive by and pick up Terry Shumate.She allowed him to drive her automobile on some of these occasions.His driving ability was described by her as normal and competent.On two or three occasions prior to the one in question she had loaned the automobile to Terry Shumate.Virginia further testified that Terry Shumate never drank intoxicants while on a date with her; she knew he did drink some but she never saw him drinking, nor did she ever talk with him by telephone when his voice indicated he was drinking to an excess.Virginia McGimsey testified that on the day of the collision Terry Shumate came to her place of employment at about 9:00 a.m. and asked to borrow her car for the purpose of looking for a job.This defendant stated that Terry Shumate was sober and had not been drinking at that time.This defendant did loan her car to Terry Shumate, and she placed no restrictions on his use thereof.

The plaintiffs proved that Terry Shumate was so drunk at the time of the collision that he was weaving the vehicle back and forth while sitting under the wheel with a quart of beer between his legs.Shumate turned a corner at a high rate of speed on two wheels and completely on his wrong side of the road, and collided with the plaintiffs' vehicle which was stopped.Witnesses who observed Terry Shumate after the accident described him as very drunk.The plaintiffs further proved that Terry Shumate pled guilty to charges of driving without a license and driving while intoxicated.

The Trial Judge, sitting without a jury, held for the plaintiffs against Terry Shumate, the defendant driver, and against Virginia McGimsey Shumate, the defendant owner of the vehicle.The Trial Judge found negligent entrustment of an automobile on the part of the defendantVirginia McGimsey.The defendantVirginia McGimsey appeals to this Court on the ground the Trial Judge erred in finding her guilty of negligent entrustment of the automobile.

Under T.C.A. § 27--303, this appeal is De novo upon the record of the trial court, accompanied by a presumption of the correctness of the judgment of decree of the trial court, unless the preponderance of the evidence is otherwise.If the evidence preponderates against the finding of the trial judge, it is the duty of this Court to enter such judgment as the law and the evidence warrant.Loftis v. Stuyvesant Ins. Co.(1964), 54 Tenn.App. 371, 390 S.W.2d 722.

' The general rule is that one who turns his automobile over to one under the influence of an intoxicant, or to one addicted to the use of intoxicants to excess, or to a driver who is known to the party loaning the car to be a reckless or negligent or otherwise incompetent driver, is charged with negligence.'Rowan v. Sauls(1953), 195 Tenn. 573, 260 S.W.2d 880.See also: Nicholson Const. Co. v. Lane(1941)177 Tenn. 440, 150 S.W.2d 1069;English v. Stevens(1952), 35 Tenn.App. 557, 249 S.W.2d 908.

The only proof presented by the plaintiffs that the defendant owner of the automobile, Virginia McGimsey, violated the foregoing rule is the fact Terry Shumate was extremely drunk at the time of the collision, and the fact Terry Shumate did not have a driver's license.The plaintiffs presented no proof that Terry Shumate was drunk or drinking when he obtained possession of the automobile from Virginia McGimsey; no proof that Terry Shumate was addicted to the excessive use of intoxicants; no proof that Terry Shumate was a reckless or negligent driver; and no proof of any other incompetence on the part of Terry Shumate either physical or mental.

Our Supreme Court in the case of Smith v. Henson(1964)214 Tenn. 541, 381 S.W.2d 892, adopted and followed the general rule that the mere fact the borrower is unlicensed does not render the owner of an automobile liable for the negligence of the borrower where such fact has no causal connection with the injury or damage.The proof fails to establish the cause of the collision was in any manner due to the failure of Terry Shumate to have a driver's license.We conclude, under the proof, the cause of the collision was the drunken state of the defendantTerry Shumate, and not in any way the lack of a driver's license, or the lack of the ability to drive an automobile absent the element of intoxication.

The question then becomes whether, under the facts, the defendant owner of the automobile can be held liable for the damages resulting from the intoxicated condition of Terry Shumate.

The plaintiffs rely upon the case of Sadler v. Draper(1959), 46 Tenn.App. 1, 326 S.W.2d 148, wherein the agent of the owner of an automobile loaned the vehicle to one Crenshaw.In describing the borrower of the automobile, Judge Felts summarized as follows:

'There is little or no dispute in the evidence that Crenshaw was incompetent, reckless, an habitual drunkard, and without a driver's license; and that Foxall (agent) was well acquainted with Crenshaw, a cousin of his, and knew...