Fuller v. Tennessee-Carolina Transp. Co.

• Decision Date: 27 November 1970
• Docket Number: TENNESSEE-CAROLINA
• Parties: Clyde FULLER, Plaintiff-Appellee, v.TRANSPORTATION COMPANY, Defendant-Appellant.
• Court: Tennessee Court of Appeals

Page 953

471 S.W.2d 953

63 Tenn.App. 330

Clyde FULLER, Plaintiff-Appellee, v. TENNESSEE-CAROLINA TRANSPORTATION COMPANY, Defendant-Appellant.

Court of Appeals of Tennessee, Middle Section.

Nov. 27, 1970.

Certiorari Denied by Supreme Court Oct. 18, 1971.

T. T. McCarley, of Edwards, Schulman, McCarley, Hollins & Pride, Nashville, Tenn., for plaintiff-appellee, Clyde Fuller.

Don R. Binkley, of Gracey, Buck, Maddin & Cowan, Nashville, Tenn., for defendant-appellant, Tennessee-Carolina Transp. Co.

OPINION

PURYEAR, Judge.

This is a suit for property damage and we will refer to the parties as plaintiff and defendant as they appeared in the trial Court.

The case was tried before the Circuit Judge and a jury on January 19, 1970, and resulted in a judgment in favor of plaintiff for the sum of $12,000.00 based upon a jury verdict for that amount.

The defendant-appellant filed its motion for a new trial, which was overruled, and this appeal in error resulted.

The defendant has filed six assignments of error, the first two of which raise the general proposition that there was no evidence to justify submission of the case to the jury and therefore, it was error for the trial Court to overrule defendant's motion for a directed verdict made at conclusion of all the proof, which motion was predicated upon the ground there was no evidence that the defendant owned or controlled the tractor which was towing a trailer.

In order to properly discuss these two assignments of error, it will be necessary for us to give a detailed summary of the evidence in the case which is material to the question presented by these assignments.

The plaintiff owned several commercial vehicles, including a tractor-trailer rig which, at the time of the accident on March 26, 1964, was being operated and driven by plaintiff's employee, one William Eugene Burke, on highway 70.

At the point where the accident occurred the highway was steep and winding and consisted of only two traffic lanes, one for westbound traffic and one for eastbound traffic. Plaintiff's driver was proceeding in a westerly direction enroute from Asheville, North Carolina, to Knoxville, Tennessee.

As plaintiff's driver was going around a curve in the highway he met two more tractor-trailer rigs proceeding in an eastwardly direction on said highway and succeeded in passing the first one without difficulty, but the second rig crossed the center line, coming over to plaintiff's side of the highway and, in order to avoid a collision, plaintiff's driver pulled to the right, with a portion of his rig getting on the shoulder of the highway as a result of which the shoulder collapsed and plaintiff's tractor-trailer rig was upset and damaged.

Burke testified that the tractor which was pulling the trailer that forced him off the highway was painted red and was an H--67 Series Mack Cab-Over-Engine tractor.

He further testified that he saw no identifying numbers or lettering on the tractor but that he did see a red diamond shaped figure in the center part of the front of the trailer with the letters 'T.C.T.' in the diamond shaped figure; that he had seen this identification symbol many times before and it was same markings which appeared on other trailers owned by the Tennessee-Carolina Transportation Company.

Plaintiff, Clyde Fuller, also testified but he was not present when the accident occurred and his testimony sheds no light on the question raised by these two assignments.

Albert L. Johnson, traffic manager for the defendant, Tennessee-Carolina Transportation Company, testified that in March of 1964, the defendant was operating its equipment over U.S. Highway 70 between Knoxville, Tennessee, and Asheville, North Carolina, and had been doing so since 1949.

He testified that in March of 1964 all of the trailers that were operated by defendant under its name were owned by defendant, but as a business practice, the defendant constantly interchanged equipment with other carriers. Specifically, his testimony on this subject was as follows:

'Q. Now, Mr. Johnson, are you familiar with a practice in the industry called 'equipment interchange'?

A. Yes, sir.

Q. Now, Mr. Johnson, I'm not a trucker, and I want you to just explain this practice to me to the Jury in nontechnical simple terms, if you would?

A. All common carriers, of course, own tractors and trailers. Regularly, on a day by day basis truck companies interchange their trailers with other truck companies.

Q. Excuse me, let me interrupt there. Do they interchange tractors?

A. No, Sir.

Q. Okay, go ahead.

A. Trailers only. The reason for this, and it's very popular practice and becoming more so, is to eliminate the cost of transfer of the freight on that particular trailer, assuming it is a full trailer load. We have--or company has approximately 600 trailers of its own, but yet in our day to day operations, we will have 20 to 25 per cent, at least, of what we call 'off-lines' or other truck companies trailers. So we're pulling other truck companies' trailers and other truck companies are pulling our trailers.

Q. What this is, as I understand it, and see I understand it right, Mr. Johnson, the American Trucking Association prescribes rules for this sort of thing?

A. We have a special committee set up under American Trucking Association called 'The Interchange Equipment Committee' which draws up certain rules and specifications of equipment and prescribes the daily rental that one carrier will pay the other in the event he had to swap trailer for trailer.

Q. All this is then, if I understand it right, and check and be sure I do, is a kind of regulated swap back and forth proposition?

A. Yes, Sir, very similar to the railroads.'

(B. of E. pp. 53, 54)

'Q. Now, assume, Mr. Johnson, that TCT gets an order to take a trailer load of shorts from Woodbury, say, to the naval depot of Mechanicsburg, Pennsylvania, and there is no specification made on the routing or anything like that, and yet you can't operate, your rights don't let you go to Mechanicsburg, Pennsylvania. How would you handle that?

MR. McCARLEY: If Your Honor please, I don't see the relevance of this particular line of questioning to the accident involved in this law suit, and I object.

THE COURT: Overrule the objection.

MR. McCARLEY: Note our exception.

MR. BINKLEY: Go ahead, Mr. Johnson.

A. In absence of what we call a specific routing, which would be instructions to give it to a particular named truck line at a particular point where we serve, we would first determine what carrier, interchange carrier, that we had that would make Mechanicsburg, Pennsylvania, and in the event--there again, if unrouted, I could take it from Woodbury to Nashville and interchange; I could take it from Woodbury to Knoxville, Asheville, Charlotte or Greensboro, North Carolina and interchange it. If it was unrouted, it would be in--what would control where would be its most economically advantageous to us from an operating standpoint. We could easily interchange it right in Nashville with Mason-Dixon line.

Q. And then they would pick it up in Nashville, if you did that, and take that same trailer all the way to Pennsylvania?

A. Yes, Sir.

Q. Now, Mr. Johnson, suppose you did interchange in Nashville? You have the right to operate between here and Knoxville, don't you?

A. Yes, Sir.

Q. So, do I understand now that a Mason-Dixon tractor would be pulling a TCT trailer over a route between here and Knoxville that you have a right to operate over?

A. Yes, Sir.

(B. of E. pp. 56--57)

'Q. Mr. Johnson, is TCT the only line with ICC rights to operate over Highway 70 between Knoxville and Asheville?

A. No, Sir.

Q. So you've got competition in there?

A. We have considerable amount of competition.'

(B. of E. pp. 65, 66)

He further testified that pursuant to Interstate Commerce Commission regulations the defendant's drivers made trip records, some of which were known as 'logs', and these 'logs' were preserved for a period of one year and then discarded. Therefore, the 'logs' for the period of time in which the accident occurred had been discarded, since this suit was not filed until more than a year after the accident occurred and he had no knowledge of the occurrence of the accident until suit was filed. He also testified that he was unable to find any other trip records which included the time and place of this accident.

The above named witnesses are the only persons who testified in the case and the foregoing is, in substance, all the evidence which needs to be considered by us in determining whether the trial Court should have directed a verdict for the defendant.

As has been held in numerous cases, the rule for determining a motion for directed verdict requires the trial Judge and the reviewing Court on appeal to look to all of the evidence, to take the strongest legitimate view of it in favor of the opponent of the motion and to allow all reasonable inferences from it in his favor; to discard all countervailing evidence, and if then, there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. General Motors Corp. v. Dodson (1960), 47 Tenn.App. 438, 338 S.W.2d 655; Poole v. First Nat. Bank (1946), 29 Tenn.App. 327, 196 S.W.2d 563; Phillips v. Newport (1945), 28 Tenn.App. 187, 187 S.W.2d 965 and many other cases.

Likewise, and in reverse order, it is true that where there is no material and determinative evidence to support a verdict for the opponent of the motion it must be sustained. Cude v. Culberson (1947), 30 Tenn.App. 628, 209 S.W.2d 506; Camurati v. Sutton (1960), 48 Tenn.App. 54, 342 S.W.2d 732, Nicholas v. Provident Life & Accident Ins. Co. (1970), Tenn.App., 457 S.W.2d 536.

By material evidence, is meant evidence material to the question in controversy, which must necessarily enter into consideration of the controversy and by itself, or in connection with other evidence, is...