Fulmer v. Jennings
| Decision Date | 30 November 1940 |
| Citation | 148 S.W.2d 39,24 Tenn.App. 635 |
| Parties | FULMER v. JENNINGS (three cases). |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court March 1, 1941.
Appeal in Error from Circuit Court, Davidson County; Richard P Dews, Judge.
Actions tried together, by Gilbert Jennings, Annie B. Jennings, and Elizabeth Jennings, respectively, against Arthur Fulmer, for personal injuries. Judgments for plaintiffs, and defendant appeals in error.
Affirmed.
Levine & Levine, of Nashville, for plaintiff in error.
Elvin Woodroof and Armistead, Waller, Davis & Lansden, all of Nashville, for defendants in error.
These three suits are for damages for personal injuries suffered in an automobile collision. They were tried together, resulting in verdicts and judgments for plaintiffs in these amounts Gilbert Jennings, $1,250; Annie B. Jennings, $100; and Elizabeth Jennings, $150. Defendant, Arthur Fulmer, appealed in error. He insists that verdicts should have been directed for him at the close of plaintiffs' evidence and at the close of all the evidence. He also complains of the admission of certain evidence, of the charge to the jury, and of the amount of the verdicts.
The collision occurred about 7 P. M. June 29, 1935, at the intersection of Cedar Street and Seventh Avenue, Nashville. Gilbert Jennings was driving his automobile east on Cedar Street. His wife, Annie B. Jennings, and his daughter-in-law, Elizabeth Jennings, were on the rear seat of his car. As he was crossing the intersection, and was about two-thirds of the way across, another automobile, coming west on Cedar Street, suddenly turned south toward Seventh Avenue across the line of eastbound traffic, struck his car, causing the injuries sued for.
The facts of the accident and the negligence of the driver of this other car were not disputed. The only controversy on the issue of liability was as to the identity of the car and its driver. The driver was a white woman. None of the witnesses knew her. She did not give her name. No one else was in the car. Just after the collision two men came out of the Memorial Hotel, located on the corner opposite the place of the accident, got in the car with the woman, and they all drove away.
However, before the car was moved three witnesses took its license number. Gilbert Jennings wrote the number in a check book, which he produced at the trial. Sam Curtis put the number down in his time book, which he also produced. W. D. Martin also took the license number. All of these witnesses said the number was 120--714. Two of them said it was a Tennessee license number, while one of them was able to state only the number but was not able to say whether it was a Tennessee license number. Over defendant's objection, plaintiffs adduced evidence showing that Tennessee license number 120--714 for the year 1935 was registered in the name of Arthur Fulmer, 260 Monroe Street, Memphis, Tennessee, the defendant.
When the trial court overruled defendant's motions for directed verdicts at the close of plaintiffs' evidence, defendant did not elect to stand on the motions, but waived them by introducing witnesses in his behalf. Duling v. Burnett, 22 Tenn.App. 522, 124 S.W.2d 294; John Gerber Co. v. Smith, 150 Tenn. 255, 263 S.W. 974; Hot Blast Coal Co. v. Williax, 10 Tenn.App. 226. Defendant also rendered immaterial his objection to the evidence of registration of the car in his name, because he produced correspondence between himself and Messrs. Cate & Cate, former attorneys for plaintiffs, in which he admitted the car was registered in his name. On July 2, 1935, Cate & Cate wrote him, stating a "Chevrolet Coach, license number 120--714" had struck the car of Gilbert Jennings on Saturday, June 29, in Nashville, and asking him to "refer this letter to your insurance company so that they may contact us." He replied by letter dated July 3, 1935, as follows:
Construing this most strongly in favor of plaintiffs, as we must do on defendant's motions for directed verdicts, we think this was a plain admission that the Chevrolet Coach, license number 120--714, was registered in his name, and this admission left no controversy as to such registration and made immaterial defe...
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Reid v. Messer
... ... discussion that this motion was waived when, following the ... action thereon, the defendant offered evidence in his own ... behalf. Fulmer v. Jennings, 24 Tenn.App. 635, 148 ... S.W.2d 39; Duling v. Burnett, 22 Tenn.App. 522, 124 ... S.W.2d 294 ... The defendant ... ...