Holder v. Peggy Ann Wrecker and Repair Service
| Decision Date | 02 January 1973 |
| Citation | 518 S.W.2d 770 |
| Court | Tennessee Court of Appeals |
| Parties | Byron HOLDER, Plaintiff-Appellee, v. PEGGY ANN WRECKER & REPAIR SERVICE, Defendant-Appellant. |
Campbell & Campbell, Chattanooga, for defendant-appellant.
Luther, Anderson & Ruth, Chattanooga, for plaintiff-appellee.
The defendant, Peggy Ann Wrecker & Repair Service, has appealed from a judgment of $1,100.00 rendered against it based on a jury verdict in the Circuit Court of Hamilton County in favor of the plaintiff, Byron Holder. The plaintiff Holder, is the owner of a 1969 one-ton Ford van truck which was damaged when the driver, Billy D. Russell, lost control of the truck and the truck went off the east side of U.S. Highway 27 and turned over.
The driver, Billy D. Russell, testified that he was regularly employed by Byron Holder as a driver of the 1969 Ford truck and on the night of January 11, 1970, between the hours of 6:30 and 7:00 P.M. was driving southwardly along U.S. Highway 27 just north of Soddy, Tennessee, located in Hamilton County near Chattanooga; that the highway was slick from rain, sleet and snow. Russell testified he was traveling 30 to 40 miles per hour and suddenly about 25 to 30 feet up in front of him his headlights revealed an automotive wrecker allegedly owned by the defendant blocking the southbound traffic lane while in the process of pulling a Volkswagen from a ditch along the west side of U.S. Highway 27. Mr. Russell testified that there were no lights on the wrecker nor any flares placed along the highway; that he, Russell, applied his brakes, swerved to the left in an effort to miss the wrecker, lost control of the automobile and because of the ice, snow and sleet, the truck went off the left or east side of the highway and turned over.
Mr. Russell testified that several passing motorists stopped to inquire of his welfare but he did not learn their identity. Mr. Russell further testified that he never learned nor asked the name of the driver of the wrecker but that the wrecker had printed on the left front door the name 'Peggy Ann Wrecker Service, Rockwood, Tennessee'; that the wrecker was painted red and white; that the wrecker left shortly after the accident but that on one or more occasions after the accident the driver, Russell, went to the town of Rockwood, passed the defendant's place of business which consisted of a restaurant on one side of the highway and a wrecker service on the other and he noticed that all of the wreckers and motor vehicles of the defendant, Peggy Ann Wrecker and Repair Service, were painted red and white; that he thought he saw the wrecker involved in the accident parked outside defendant's place of business in Rockwood but he was not sure.
The driver, Russell, was corroborated by the testimony of two police officers of the Hamilton County Police Department, Mr. R. W. Jett and Mr. Claude Petty. These two officers testified that they did not receive a call to investigate the accident to the Volkswagen which was being pulled into the highway by the wrecker but that they received a call relative to the overturned truck being driven by Mr. Russell; that when they reached the scene of the accident, the wrecker was up in the highway with the Volkswagen in tow and was headed back north on Highway 27 which is in the direction of Rockwood. They did not get the name of the driver of the wrecker but they saw a sign on the right door of the wrecker which they said was 'Peggy Ann Wrecker Service.' Neither of the officers mentioned seeing the address 'Rockwood, Tennessee' on the door. One of the officers testified that he radioed back to headquarters and asked if he should investigate the towing of the Volkswagen and was instructed by his superiors not to do so but to investigate only the truck driven by Russell. Accordingly, neither of the officers attempted to interrogate the driver of the wrecker towing the Volkswagen. One of the officers said he thought it was either a Ford or a Chevrolet wrecker.
Mr. Ed Harvey testified that he was co-owner and manager of the Peggy Ann Wrecker and Repair Service located at 703 Gateway Boulevard, Highway 27, in Rockwood, Tennessee; that as the name implied the primary business was in connection with trucks and that the wreckers were used to go out on the road and pull in disabled trucks or take the same to Knoxville or to work a wreck which the truck has been involved in, mostly within a radius of 35 miles; that the only time the company left the county was when the company received a call from the Highway Patrol. The company, on January 11, 1970, had no Ford or Chevrolet wreckers but only a White, an Autocar, and an International wrecker. The witness, Harvey, along with two employees, Jerry Reynolds and Paul Renfro, were the drivers of the three wreckers owned by the company at that time. The business stayed open 24 hours per day.
Mr. Harvey said that it was 50 miles from Rockwood to the Soddy area; that he had no recollection of the particular night, January 11, 1970, but a search of his records indicated to him that his wrecker had not made a business trip to Soddy on the night in question; that he had no knowledge of the wrecker being used without his knowledge or permission on such occasion. He introduced charge slips for business done on the night of January 11, 1970, none of which included a trip to Soddy or the Chattanooga area. He did admit that it was not required that either one of the other wrecker drivers communicate with him before making a call with the wrecker but that they usually did call him before going out of town. Mr. Harvey testified that so far as he knew he had never made a wrecker trip to Soddy from Rockwood and that the cost would have been a total of $75.00 which would be somewhat prohibitive for the customer.
Mr. Harvey was corroborated by the testimony of his two employees, namely, Paul Renfro who is still employed by Harvey, and by the other driver, Jerry Reynolds, who was living in Nashville, Tennessee, at the time of the trial and was no longer employed by Peggy Ann Wrecker Service. Both of these employees disclaimed any knowledge of any trip by Peggy Ann Wrecker Service to Soddy, Tennessee, on the night in question.
His Honor the Trial Judge charged the jury on the presumption of ownership as provided in T.C.A. Section 59--1037 which is as follows:
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Cardwell v. Golden
...negligence is an issue, the trial judge should include an instruction on remote contributory negligence. Holder v. Peggy Ann Wrecker & Repair Service, 518 S.W.2d 770 (Tenn.App. 1973); Provence v. Williams, 62 Tenn.App. 371, 462 S.W.2d 885 (1970). The trial judge erred in refusing to give th......