Hime v. Sullivan

• Decision Date: 10 June 1949
• Parties: HIME v. SULLIVAN.
• Court: Tennessee Supreme Court

221 S.W.2d 893

188 Tenn. 605

HIME v. SULLIVAN.

Supreme Court of Tennessee.

June 10, 1949

Rehearing Denied July 9, 1949.

Appeal from Circuit Court, Obion County; E. A. Morris, Judge.

Action by Mrs. Mattie Sullivan, administratrix of the estate of her deceased daughter against Reid Hime and others, for the wrongful death of the decedent. Judgment for plaintiff against the named defendant was affirmed by the Court of Appeals and the named defendant brings certiorari.

Affirmed.

On Petition to Rehear.

Robert P. Adams, Trenton, for plaintiff in error.

John M Drane, Newbern, E. H. Lannom, Union City, for defendant in error.

BURNETT Justice.

Mrs Sullivan, as the administratrix of the estate of her deceased daughter, instituted this suit for the wrongful death of her daughter against W. A. Adams, owner of a taxi cab and Richard E. Pierce the driver or operator of said cab and against W F. Hime and Reid Hime.

In the first trial of this case the jury returned a verdict in favor of the plaintiff against Adams & Pierce for $10,000 dollars and returned a verdict in favor of the defendants, Himes'. On a motion for a new trial, the trial judge set aside the verdict in favor of the defendants, Himes' and granted the plaintiff a new trial as to them. The verdict against the operator and owner of the taxi eventually became final, after its appeal, the Court of Appeals affirmed that judgment against those defendants. No petition for certiorari was filed in that case. The case then later came on to trial before another jury as to the defendants, Himes'. In this second trial the jury returned a verdict in favor of the plaintiff and against both defendants for the sum of $8,000 dollars. The Court of Appeals reversed the judgment as to W. F. Hime because the truck operated by his son Reid Hime was not being used or did not come under the Family Purpose Doctrine. No question is now made about this holding of the Court of Appeals. The petitioner here is Reid Hime against whom the $8,000 dollar judgment was rendered and affirmed by the Court of Appeals. A petition for certiorari was duly presented to this Court and after due consideration the same was granted and was set down for hearing. Argument has been heard thereon. We granted certiorari in the first instance because under present day developments, especially in motor vehicle accidents, some of the questions here presented for determination are of apparently first impression in this State, and they are of serious importance.

The accident in which the daughter of Mrs. Sullivan met her death occurred about 10:00 o'clock at night on April 22, 1945, on U.S. Highway No. 51, in Obion County, Tennessee. At the time of the accident the deceased and her mother were in the back seat of a taxi cab being operated by Pierce. The father of the deceased, the husband of the plaintiff, was riding in front with the taxi driver. They were proceeding down this highway at a rapid rate of speed and, just shortly after another car passed them going in the opposite direction, they ran into the left rear corner of the truck bed of the Himes'. This truck bed was 12 feet long and 91 1/2 inches wide, 2 1/2 to 3 inches thick with a steel band or rim around it. There were no sideboards or standards around the bed. The taxi cab hit the corner of this bed about the right front of the taxi sheering the taxi in two and striking the deceased, killing her almost instantly.

At the time, or just immediately before the collision, the large truck being operated in the same direction in which the taxi cab was going, and as the other car passed going in the opposite direction, the Hime boy, operating the truck, apparently attempted to dim his lights and in doing so he slowed up his truck to a very slow rate of speed, probably eight or ten miles an hour, or as some of the witnesses say brought it to a stop. He gave no signals of his intention to slow up or stop.

The verdict of the jury, approved by the trial judge, is supported by material evidence of the negligence of the Hime truck and is therefore conclusive on the facts. To mention a few of these evidentiary facts of negligence we might say that there is proof in the record that the light on the rear of the truck was not burning; that it was covered with mud and that the truck bed was wider then that as permitted by statute and extended over the light to such an extent that it would make the light hard to see, if it was shining. Then too, the manner of slowing up and suddenly stopping on this main arterial highway; in view of the nature of the bed (long flat bed and very thin it would obviously be very hard for one following in the rear in the night to see this). Under these circumstances clearly the jury had material evidence from which it could reasonably draw conclusions of the negligence on the part of the Himes'. As to whether or not this negligence concurred with the negligence of the taxi driver was a question for the jury. Propositions determinative of this case will be disposed of without specific reference to the many assignments of error made upon the judgment of the Court of Appeals. A verdict will not be set aside by this Court from the consideration of the facts, if there is any material reliable evidence to support it. It will not be set aside upon the ground that the weight or the preponderance of the evidence is against the verdict. Young v. Cowden, 98 Tenn. 577, 40 S.W. 1088.

One of the principal complaints made on this appeal is to the setting aside of the verdict of the jury at the first trial in favor of the Himes', and granting a new trial. It has long been settled in this State, and can hardly be doubted, that when a Circuit Judge is dissatisfied with the verdict he must set it aside and grant a new trial. The Circuit Judge in the instant case, in setting aside this judgment, expressed the idea that he was not satisfied with the verdict and felt that the negligence of the two cars concurred in causing this unfortunate accident. He said: 'and his slowing the truck and the condition of his truck and in blinking out his lights and the fact that it was nighttime and the traffic conditions that existed at the time that both Hime and Pierce were guilty of negligence contributing approximately to the injuries and death of the deceased.' It was the duty of the trial judge who saw and heard these witnesses to weigh this evidence, just as the jury weighed it, and his doing so and being satisfied therewith is mainly the reason that we have repeatedly held that we will not disturb a jury verdict when supported by material evidence and approved by the trial judge.

This suit, as originally brought, was a single action against several joint tortfeasors. This single action became divided when a judgment was rendered against part of the tortfeasors and a judgment against others was set aside and a new trial granted as to them. There were then two actions against two different groups of tortfeasors. It has long been settled in this State, and practically universally, as far as we know, that joint tortfeasors are jointly and severally liable but that there can be only one satisfaction. Railroad v. Jones, 100 Tenn. 512, 45 S.W. 681; Knott v. Cunningham, 34 Tenn. 204, 205; Snyder v. Witt, 99 Tenn. 618, 42 S.W. 441.

Obviously, from what has heretofore been said, we have here what was originally a single action but has now turned out to be two separate actions against two groups of tortfeasors. In one case there is a judgment against one group of tortfeasors for $10,000 dollars, and in the second action, there is a judgment against another group of the joint tortfeasors for $8,000 dollars. It is argued, and assigned as error, that the rendering of these two judgments should not have been done because it is not a joint verdict against all the alleged joint tortfeasors, because one amount was rendered in one trial and in a separate trial, yet in the same suit, another amount was rendered. This trial, of course even though it was all brought at one time against all joint tortfeasors, proceeded as if there had been separate suits brought, in other words, the separate trials are just as if the suits had been brought separately against the different groups of tortfeasors.

In Restatement Of The Law, Judgments, at page 468 it is said: 'A judgment against one of several persons each of whom is liable for the entire cause of action does not discharge any of the others unless the liability is alternative or the claim is not severable. Thus, a person is entitled to separate judgments for the full amount of his harm against any number of tortfeasors whose conduct contributes to the tort or who otherwise are responsible for it. * * * Thus, if he is awarded a small amount as damages in an action against one of a number of joint tortfeasors, he is not necessarily prevented from obtaining a judgment for a larger amount in a subsequent action against another of the tortfeasors.' To the same effect see Volume 52 of American Jurisprudence at page 464 where it is said: 'The rule generally supported by the cases as to the conclusiveness of judgments involving joint and several tort-feasors is that an unsatisfied judgment in one action against one or more of a number of joint and several tort-feasors is no bar to the prosecution of other actions against the other tort-feasors.'

In the instant case the record clearly shows that there was no satisfaction of the first judgment.

The identical legal situation arose nearly one hundred years ago in this State as is shown by the case of Knott v Cunningham, 34 Tenn. 204. In this case two men were racing their horses down a road on a bet, when they ran into a third horse and killed it. The owner of the deceased horse sued...