Horne v. Palmer

• Decision Date: 13 August 1954
• Citation: 274 S.W.2d 372,38 Tenn.App. 354
• Parties: Hanzy HORNE et al. v. Farley L. PALMER, Jr. 38 Tenn.App. 354, 274 S.W.2d 372
• Court: Tennessee Court of Appeals

Page 372

274 S.W.2d 372

Hanzy HORNE et al. v. Farley L. PALMER, Jr.

38 Tenn.App. 354, 274 S.W.2d 372

Court of Appeals of Tennessee, Eastern Section.

Aug. 13, 1954 Certiorari Denied by Supreme Court Nov. 16, 1954.

[38 TENNAPP 355] Wilson & Worley, Kingsport, for plaintiffs in error.

Penn, Hunter, Smith & Davis and M. Lacy West, Kingsport, for defendant in error.

McAMIS, Presiding Judge.

These two cases are the result of a collision between the automobile of plaintiff W. R. Horne driven by his son, the plaintiff Hanzy Horne, 18 years of age, and a pick-up truck owned and operated by defendant and cross plaintiff Farley L. Palmer, Jr. The cases were tried together before the Court and a jury and resulted in the following verdicts:

Hanzy Horne by nfd. v. Palmer, $75.00

W. R. Horne v. Palmer, $75.00

Farley L. Palmer, Jr. v. Hanzy Horne, cross action dismissed.

Plaintiffs' motions for a new trial were overruled and they have appealed insisting that the verdicts are inconsistent[38 TENNAPP 356] and so grossly inadequate as to indicate either passion, prejudice and caprice on the part of the jury or that they are compromise verdicts. It is also insisted that the Court erred in charging the jury that the statutory speed limit of 30 miles per hour in business or residential districts would prevail over a speed limit of 45 miles per hour established by signs put up by the Tennessee Department of Safety.

The injuries sustained by Hanzy Horne consisted of an injured hip which caused him considerable pain, but no disability, cuts and lacerations about the face and head which left a scar on the forehead practically concealed by a wrinkle. He also sustained a rather serious break or fracture of the arch of the right foot which was still swollen and causing pain and inability to work three months after the accident. His father, in addition to loss of the services of the son who worked for him on the farm, incurred doctor's and hospital bills of approximately $136 and damage to his car of $1,428.55.

Since it is conceded in the reply brief that the jury found that the negligence of Palmer was a proximate cause of the collision and we are not asked to review that finding, it is unnecessary to dwell at length on the facts. The collision occurred at the intersection of Millye Street and U. S. Highway 23 leading from Johnson City to Kingsport, in a business or residential district in the suburbs of Kingsport. Defendant Palmer approached the highway from the east on Millye Street and stopped at a stop sign. He says he saw the lights of the Horne car approaching from the direction of Johnson City (which was on his left) at a distance of about 600 feet and judged its speed to be moderate; that he then pulled out from the stop sign and had completed the turn when [38 TENNAPP 357] his truck was struck from the rear and knocked off the highway.

Plaintiff Hanzy Horne testified that he was travelling at about 45 miles per hour when the Palmer truck pulled out in front of him too close for him to stop. From the foregoing we think there is permissible an inference that Horne was guilty either of proximate or remote negligence. The finding of some amount, small though it is, in his favor negatives a finding of proximate negligence, leaving remote negligence as the only possible jury finding against the Hornes.

To understand the insistence of the plaintiffs that the verdicts are inconsistent and are compromise verdicts, it is necessary to quote at some length the remarks of the Court and jury when the jury returned to report its verdict:

'The Court: How do you find?

'The Foreman: Let Mr. Palmer pay the doctor bill and the hospital bill.

'The Court: You find for Hanzy Horne? What about Hanzy Horne?

'The Foreman: Well we just forgot about that.

'The Court: You can't forget about that.

'The Foreman: Can't we?

'The Court: You found for W. R. Horne, that is the father.

'The Foreman: No, just have the boy * * * let Mr. Palmer pay for the hospital bill and the doctor bill.

'The Court: Mr. W. R. Horne is the one who sues for the doctor and hospital bill.

'The Foreman: Well just change that.'

After the Court appropriately charged the jury to [38 TENNAPP 358] return separate verdicts in the cases, the jury retired and after further deliberations offered to return verdicts dismissing the suit of the son and the cross action of Palmer and awarding $136, representing hospital and doctor's bills, in favor of W. R. Horne. The Court properly declined to accept the verdicts as inconsistent and after further instructions from the Court the jury retired and thereafter returned the final verdicts of $75 in favor of each of the Hornes and dismissing the cross action.

It is obvious from the foregoing that the jury was confused and, despite the diligent efforts of the Court, we think they either remained confused or set out to compromise the cases. Though wishing to dismiss the suit of Hanzy Horne, the jury apparently decided to deduct $75 from the hospital and doctor's bills and award that amount to Hanzy Horne so that the verdict in that case would not be inconsistent with a verdict in favor of the father.

In view of all that transpired in connection with the return of the verdicts, it would be going rather far to hold that the jury returned a verdict for only $75 in favor...