Kee v. Hill
Decision Date | 27 April 1962 |
Citation | 51 Tenn.App. 228,366 S.W.2d 520 |
Parties | Sammie KEE, Plaintiff-in-Error, v. Doyle HILL, Administrator of the Estate of James Clifford Hill, Deceased, Defendant-in-Error. 51 Tenn.App. 228, 366 S.W.2d 520 |
Court | Tennessee Court of Appeals |
[51 TENNAPP 230] W. H. Lassiter, Huntingdon, for plaintiff in error.
Aaron Brown, Paris, J. Lee Taylor, Huntingdon, for defendant in error.
The case at bar and a companion case, Daniel Frederick Walters, b/n/f Thomas Walters v. Sammie Kee, et al., were tried to the same jury. There was only one transcript of the record and one bill of exceptions. However, the cases are entirely separate. Both cases are on appeal in error to this Court. Separate opinions in each case are being filed and separate judgments will be entered.
In the case at bar the jury below awarded a verdict of $7,500 in favor of the plaintiff, Doyle Hill, Administrator of his son, James C. Hill, deceased. Judgment was entered on this verdict against the defendant, Sammie C. Kee. In the other case the Trial Judge directed a verdict in favor of Sammie Kee and against the plaintiff, Daniel Walters.
Both cases arose out of an automobile accident which occurred on the morning of May 14, 1960, about 4:00 A.M. at a bridge eight miles east of Paris, Tennessee, on Highway 79 which runs from Paris, Tennessee, to the Tennessee River.
There were three occupants of the automobile the defendant, Sammie Kee, a minor aged 19; the plaintiff, [51 TENNAPP 231] Daniel Frederick Walters, aged 18; and the deceased, James C. Hill, aged 17.
James C. Hill was killed instantly and the plaintiff, Daniel Walters was severely injured. The defendant, Sammie Kee, was much less severely injured.
The principal issue of fact in the Court below was which of the three boys was driving the automobile at the time it struck the bridge.
All three young men were residents of Carroll County living in or near Huntingdon, Tennessee. The defendant, Sammie Kee, and the plaintiff, Daniel Walters, had graduated from high school on the evening of May 12, 1960. The deceased, James C. Hill, had been out of school one or more years and was employed in a restaurant in Huntingdon, Tennessee.
Sometime about 3:00 A.M. on the morning of May 14, 1960, the boys met at the East End Truck Stop in Huntingdon, Tennessee, and decided that they would drive over to Kentucky Lake on the Tennessee River for water skiing, boat riding, etc. The father of Daniel Walters maintained a cabin on the Lake which the boys planned to occupy.
The defendant, Sammie Kee, had possession of a 1958 Ford automobile owned by the defendant, C & P Motor Company of Huntingdon, Tennessee. The car had been bailed to young Kee for him to test drive and demonstrate to his parents as prospective purchasers.
The group left Huntingdon, Tennessee, driving toward Paris in Henry County, Tennessee, with the defendant, Sammie Kee, driving the automobile; the plaintiff, Daniel Walters, sitting or partially lying on the back seat; and [51 TENNAPP 232] the deceased, James C. Hill, sitting on the right front seat. The defendant, Sammie Kee, and the plaintiff, Daniel Walters, were both admittedly very sleepy and the plaintiff, Walters, went to sleep on the back seat shortly after they started toward Paris. The defendant, Sammie Kee, had the windows partially open and the radio playing to help keep him awake. They had stayed up all night on the night of May 12 following their graduation from high school and had been up most of the night of May 13, 1960.
About 4:00 A.M. the witness, Henry Peoples, who is a truckdriver for the Hoover Motor Express Company approached the bridge in question from the east traveling toward Paris. He came upon the wrecked Ford automobile standing in an angling position in the north or westbound traffic lane on the bridge. The body of James C. Hill was against the west end or west abutment of the bridge on the south side of the road. The plaintiff, Daniel Walters, severely injured, was sitting on the trunk of the car in a very dazed condition. The defendant, Sammie Kee, was lying in the highway some seven to ten feet in front of the wrecked automobile, that is, west of the automobile in the direction of Paris, Tennessee.
The entire right hand side of the automobile was greatly smashed in and pieces of metal from the automobile were driven into the stomach of James C. Hill so that he was practically disemboweled. The undertaker had great difficulty removing the metal from the body in order to place it in the ambulance.
The truckdriver asked the defendant, Sammie Kee, who was driving. Kee replied, 'I was asleep in the back seat.' The truckdriver, Peoples, was asked by plaintiff [51 TENNAPP 233] Walters what happened and he explained to him, 'You hit a bridge abutment.' Then he asked Walters who was driving and the plaintiff, Walters, said, 'I was asleep.'
State Highway Patrolman Huel Burks testified that upon his examination of the scene of the accident he found the automobile in the middle of the bridge facing generally in the direction of Paris, Tennessee, and being over in the westbound or northern traffic lane. He further testified that his examination of the area indicated that the automobile in which the boys were riding hit the guard rail some three or four feet west of the west end of the bridge and then crashed into the bridge itself.
Patrolman Burks went to the hospital and talked with the defendant, Kee, who told him that they stopped at Lax's Service Station; got some gasoline; and that he, Kee, then got into the back seat and went to sleep; that the deceased, James C. Hill, was driving the automobile at the time it hit the bridge. Patrolman Burks did not get an opportunity to talk to the plaintiff, Walters, because of his severe injuries.
The plaintiff, Daniel Walters, testified that he knew nothing about the manner in which the accident occurred; that he was asleep on the back seat; that he had no recollection of the car stopping and the defendant, Sammie Kee, getting into the back seat with him. Further, that after the collision occurred the first he remembered was sitting on the back of the car wiping blood from his face; that he could see the body of James C. Hill crumpled against the west end of the bridge.
Further, he testified that while he was in the hospital the defendant, Sammie Kee, suggested to him that he, Walters, should remember when he, Kee, stopped the [51 TENNAPP 234] car at the Dairy Kreme in Paris shortly before the collision and got in the back seat with him. Walters said that he told Kee that he did not remember it but if he, Kee, said it he guessed it was true. Also he later confirmed to Sammie Kee's mother that James C. Hill must have been driving as Sammie Kee was on the back seat with him. However, in his testimony before the jury the witness, Walters, affirmatively testified that he had no recollection of the car stopping or of Kee getting in the back seat and that in substance, if it had happened he was reasonably sure he would have known it.
The plaintiff, Hill, has named as defendants Mr. and Mrs. J. S. Kee, the parents of the defendant, Sammie Kee, as well as the owners of C & P Motor Company and also named as defendant, Daniel Walters.
The plaintiff, Walters, had made as parties defendant, in addition to the defendant Kee, the owners of the C & P Motor Company. At the conclusion of the plaintiff's proof in the Walters case His Honor the Trial Judge directed a verdict in favor of all the defendants and against the plaintiff, Daniel Walters, on the grounds that the said Walters had been guilty of contributory negligence as a matter of law by getting into the back seat of the car, going to sleep well knowing that the defendant, Sammie Kee, was very sleepy and keeping the windows of the car open to try to keep awake.
Plaintiff Walters did not appeal from the action of the Court in dismissing Mr. and Mrs. J. S. Kee but he has excepted and prayed an appeal from the order of the Court directing a verdict in favor of the defendants, James A. Pendergrass and Gooch Carrington, d/b/a C & P Motor Company, and the defendant, Sammie Kee.
[51 TENNAPP 235] In the case of Hill, Administrator, which is the case at bar the Trial Court directed a verdict in favor of the defendants, Mr. and Mrs. J. Sam Kee, the owners of the C & P Motor Company and the defendant, Daniel Walters. He overruled the motion for a directed verdict as to the defendant, Sammie Kee. There is no appeal from this action.
Thereupon the cause continued only in the case of Hill, Administrator, v. Sammie Kee. The defendant, Sammie Kee, testified in his own behalf and also submitted the testimony of his mother and father. They both testified that the defendant Walters told them both shortly after the collision that the deceased, James C. Hill, was driving the car at the time of the collision. The jury returned a verdict of $7,500 as above set out; judgment was rendered and the defendant, Sammie Kee, has prosecuted this appeal in error.
Assignments of error I and II insist that there was no evidence to support the verdict of the jury and that His Honor the Trial Judge was in error in refusing to grant defendant Sammie Kee's motion for directed verdict made at the conclusion of all the evidence. The other three assignments of error pertain to portions of His Honor's charge to the jury.
The uncontradicted proof is that the defendant, Sammie Kee, had custody of the automobile in question by virtue of the bailment from C & P Motor Company and that he left Huntingdon, Tennessee, bound for Paris, Tennessee, and Kentucky Lake driving the automobile. The right side of the car was completely demolished. The left side of the automobile was damaged very slightly.
[51 TENNAPP 236] The body of James C. Hill was found against the west end of the bridge with metal strips from the right side of the...
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