Gordon's Transports, Inc. v. Bailey

• Decision Date: 22 February 1956
• Citation: 294 S.W.2d 313,41 Tenn.App. 365
• Parties: GORDON'S TRANSPORTS, Inc., Plaintiff in Error, v. Mrs. Mary A. BAILEY, Defendant in Error.
• Court: Tennessee Court of Appeals

Page 313

294 S.W.2d 313

41 Tenn.App. 365

GORDON'S TRANSPORTS, Inc., Plaintiff in Error, v. Mrs. Mary A. BAILEY, Defendant in Error.

Court of Appeals of Tennessee, Western Section at Jackson.

Feb. 22, 1956.

Rehearing Denied March 16, 1956.

Certiorari Denied by Supreme Court Sept. 3, 1956.

Petition to Rehear Certiorari Denied by Supreme Court Oct. 5, 1956.

Glenn Elliott and James W. Wrape, Memphis, for plaintiff in error.

John S. Porter and Thomas C. Rhem, Memphis, for defendant in error.

BEJACH, Judge.

This cause involves an appeal in the nature of a writ of error, by Gordon's Transports, Inc., from a judgment against it in the sum of $20,000 rendered by the Circuit Court of Shelby County, Tennessee. There had been two previous trials of this same cause, both of which resulted in mistrials, but wayside bills of exception seem to have been filed, preserving the testimony in each of the former trials. During the second trial, the defendant in error having been remarried, her declaration was amended to change the name in which she sues from Mary A. Bailey to Mary A. Nunnally. The suit was originally brought by Mrs. Mary A. Bailey as administratrix of the estate of Frank W. Bailey, deceased, her former husband, on account of his death which was the result of a collision on U. S. Highway 51, near Richview in the State of Illinois,--which collision occurred at about 5:30 A.M., July 30, 1952. The suit, as originally brought, was also against Herman E. Washburn, the driver of plaintiff-in-error's truck or trailer-tractor combination; and, as originally brought, the suit also sought recovery of property damages in the amount of $1,750. During one of the two former trials, however, a nonsuit was taken as to the property damage claim. A nonsuit was also taken as to Herman E. Washburn.

For convenience, the parties will be styled as in the lower court, plaintiff and defendant, plaintiff-in-error here having been the defendant in the lower court, and defendant-in-error having been the plaintiff below.

Plaintiff's declaration alleges her qualification as administratrix of her deceased husband, Frank W. Bailey, and alleges that he died as a result of a collision between an automobile being driven by him and a motor vehicle of the defendant, driven by one Herman E. Washburn. Plaintiff's declaration pleads the Illinois wrongful death statute, and alleges that the death of her husband was occasioned by defendant's negligence in operating its equipment in a careless and reckless manner, upon the wrong side of the highway, failing to keep to the right side of the highway, operating at an excessive speed, not having its vehicle under proper control, not keeping a proper lookout ahead, and in failing to change direction or stop when the perilous situation of plaintiff's husband became apparent, as a result of which a collision took place in which plaintiff's said husband was immediately killed. The declaration pleads the statutes of the State of Illinois relative to reckless driving, speed restrictions, driving on the right side of a roadway, passing vehicles proceeding in opposite directions, and regulating the equipment of motor vehicles, which statutes she avers were violated by defendant with resultant death of her husband and damage to her in the amount of $20,000.

Defendant filed pleas of not guilty and contributory negligence. After an order of court requiring it so to do, it also filed special pleas setting forth its defenses, in which special pleas every allegation of common law or statutory negligence alleged in the declaration was denied. Defendant admitted that the accident referred to in the declaration took place at the time and place alleged, and that at that time and place, its equipment was being operated as a common carrier of freight by motor vehicle pursuant to authority of the Interstate Commerce Commission, and averred that at that time and place, its equipment was in perfect mechanical condition and being operated by an experienced driver in a careful, cautious and prudent manner. Defendant's special pleas, filed in the form of an answer, averred further that at the time and place of the accident referred to in the declaration, its agent and servant was operating its equipment in a northerly direction on U. S. Highway 51 N., on the right or easterly side of said highway, at a point approximately one and one-tenth miles north of Richview, Illinois, carefully, cautiously, upon the right hand side of the road, at a slow and reasonable rate of speed, and with due regard to the rights and safety of all persons in lawful use of said highway. Said answer averred further that at the time and place of collision with the automobile of plaintiff's intestate, his said automobile was being operated in a southerly direction upon said highway, being driven by said Frank W. Bailey, deceased, and that at a point, where for south bound traffic there is a curve in the road from north to west, which placed Bailey's automobile, if operated on the right side of said highway, on the inside of said curve. It averred that Bailey was operating his automobile at a high, dangerous, and reckless rate of speed, under the circumstances then existing, and that he drove same suddenly and immediately in front of the motor vehicle equipment being operated by defendant in a northerly direction upon said highway, either losing control of same or driving same in such manner that it veered across the center of said highway to the left hand side thereof, insofar as Bailey was concerned, crashing same into the left front bumper and front wheel of defendant's motor vehicle, with the result that both vehicles were pulled across the highway and into an embankment on the westerly side of the highway. It avers that Bailey was operating his automobile without properly adjusted lights and brakes, without keeping a proper lookout ahead, without having the same under control, as a high and dangerous rate of speed, contrary to all laws of the road and statutes enacted by the State of Illinois, and that such acts of said Bailey were acts of negligence which solely and alone caused or proximately contributed to causing the death of said Frank W. Bailey.

By further pleas, the defendant set forth and relied upon the statutes of the State of Illinois, authorizing the Illinois Highway Department of Public Works and Buildings to prescribe speed limits, which make it a misdemeanor for any person to fail to comply with such speed regulations, defining reckless driving, and providing that operation of a vehicle at a speed greater than is permissible is prima facie evidence of negligence. The defendant further averred in said pleas that the Illinois Department referred to in said statutes had, at the curve upon which the accident here involved occurred, placed traffic control and warning devices indicating the existence of a dangerous curve, establishing a speed limit of 35 miles per hour, and that at said time and place it was raining and the highway was wet, and that the said Frank W. Bailey, in operating his automobile in manner described in the special pleas of defendant, disregarded all speed laws, traffic control devices, warnings and guides, and drove his automobile at a speed in excess of 60 miles per hour, such negligence barring a recovery by plaintiff.

Without having expressly pleaded same, as it did the Illinois statutory law referred to above, defendant also attempted to rely on the Illinois common law applicable to suits of the nature involved in this cause, notified plaintiff's attorneys to that effect, and furnished to plaintiff's attorneys a memorandum of the Illinois decisions establishing and construing such common law. The brief of plaintiff's attorneys filed in this Court denied that such notice was given to them. Whereupon, defendant's attorney undertook to suggest a diminution of the record in this cause, so as to bring up to this Court, as part of the record herein, one or both of the wayside bills of exception filed in the lower court after previous mistrials of this cause,--which wayside bills of exception, it was claimed, would establish that such notice was given to plaintiff's attorneys and that such memorandum of Illinois authorities had been furnished, in compliance with Section 9773.7 of the 1950 Supplement to the Code of Tennessee, now T.C.A. § 24-610, which provides:

'Any party may also present to the trial court any admissible evidence of such laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.'

In view of the admission made in open court by plaintiff's attorney, that notice of that character had in fact been given and such memorandum of authorities furnished, we think it is unnecessary to grant the suggestion of diminution of the record, or issue any writ of certiorari for the purpose of bringing up said wayside bills of exception. We think this is a proper disposition of the matter, notwithstanding the fact that plaintiff's attorney sought to couple with his said admission, a denial of the conclusions sought to be drawn from that fact by defendant's attorney. The fact being admitted, the conclusions to be drawn from that fact, are, we think, matters for determination by this Court.

There is also a suggestion of diminution of the record for the purpose of bringing up to this Court special instructions offered in behalf of defendant at the trial of this cause in the lower court, it being alleged that such special instructions had been filed in the lower court but were not included in the transcript sent to this court. This suggestion of diminution of the record, also, we think, should be denied, because the granting of it could serve no useful purpose. The special instructions, even though filed in the lower court, did not become parts of the...