Long v. Tomlin

• Decision Date: 10 December 1938
• Parties: LONG et al. v. TOMLIN et al. (six cases).
• Court: Tennessee Court of Appeals

125 S.W.2d 171

22 Tenn.App. 607

LONG et al. v. TOMLIN et al. (six cases).

Court of Appeals of Tennessee, Middle Section.

December 10, 1938

Certiorari Denied by Supreme Court March 4, 1939.

Appeal in Error from Circuit Court, Cheatham County; Wirt Courtney Judge.

Six separate actions by John Tomlin; by Louise Tomlin, by next friend, etc.; by D. A. Krantz; by Lois Krantz, by next friend, etc.; by C. H. Anderson; and by Ruby Anderson, by her next friend, etc.; against J. E. Long and another to recover for injuries sustained by the minor plaintiffs when struck by an automobile, and for expenses and loss of services resulting therefrom. Judgments for plaintiffs in the order named and against both defendants for $750, $1,000, $100 $150, $200, and $300, and defendants appeal in error.

Reversed and suits dismissed as against defendant J. E. Long, and affirmed against Jimmie Long.

Garner & Richard, of Springfield, and P. H. Duke, of Ashland City, for plaintiffs in error.

Richard Marshall and Elvin Woodroof, both of Nashville, and B. J. Boyd, of Ashland City, for defendants in error.

FAW Presiding Judge.

On December 13, 1936, Louise Tomlin, Lois Krantz and Ruby Anderson--all of whom were then under twenty-one years of age--were, while walking along a high-way in Cheatham County, struck and injured by an automobile owned by J. E. Long and driven at the time by his son Jimmie Long, then a minor eighteen years of age.

Averring that the personal injuries thus suffered by the aforesaid three young ladies were proximately caused by negligence of Jimmie Long, and that he and his father, J. E. Long, were liable in damages therefor, six separate actions for damages were instituted against J. E. Long and Jimmie Long in the Circuit Court of Cheatham County; that is to say, each of said three young ladies brought a separate action (suing by her father as next friend) for damages on account of injuries to her person, and the father of each of the young ladies brought a separate action to recover for his expenses and loss of services of his said daughter, resulting, he averred, from the negligence of Jimmie Long as aforesaid.

The plaintiffs below in the six separate suits were as follows: (1) John Tomlin, (2) Louise Tomlin, by next friend, etc., (3) D. A. Krantz, (4) Lois Krantz, by next friend, etc., (5) C. H. Anderson, and (6) Ruby Anderson, by next friend, etc.

The defendants were the same in each case, viz: J. E. Long and Jimmie Long. All the parties are residents of Cheatham County, Tennessee.

The six cases were tried together, by consent, in the Circuit Court, and resulted in a judgment for the plaintiff and against the two defendants, in each case, as follows:

For John Tomlin, $750.

For Louise Tomlin, by next friend, etc., $1,000.

For D. A. Krantz, $100.

For Lois Krantz, by next friend, etc., $150.

For C. H. Anderson, $200.

For Ruby Anderson, by next friend, etc., $300.

Each of the plaintiffs below was also awarded a judgment against the two defendants for one-sixth of the costs of the cause.

A lien was declared on each of said judgments for the fees of plaintiffs' attorneys of record.

A separate motion for a new trial on behalf of each of the two defendants was made and overruled, and defendant J. E. Long then filed a motion in arrest of judgment, which was likewise overruled; whereupon each of the defendants reserved exceptions to the several rulings of the Court adverse to him, and prayed an appeal in the nature of a writ of error to this Court, which appeal was granted by the Trial Court and perfected by each of the defendants.

By order of the Trial Court, made pursuant to an agreement of the parties, the six cases have been brought to this Court in one transcript, with a single bill of exceptions, and docketed and heard here under the style appearing in the caption hereof.

For convenience, we will continue to designate the parties as plaintiffs and defendants according to their respective positions on the record below.

In order that the questions raised by the defendants' assignments of error may be better understood, the issues presented to the Court and jury below will be first stated.

The cause of action of each of the plaintiffs was predicated upon alleged injuries to such plaintiff proximately resulting from the alleged negligent operation by defendant Jimmie Long of the aforesaid automobile owned by defendant J. E. Long. With respect to the alleged negligence of Jimmie Long, and the averments upon which the claimed liability of J. E. Long are predicated, the six declarations are alike, and we quote excerpts from the first count of the declaration of Louise Tomlin, by next friend, etc., as follows:

"On December 13th., 1936, and for a long time prior thereto the defendant J. E.

Long was the owner of a certain automobile which was used by him and other members of his family as a family automobile, and especially by the defendant Jimmie Long, and said automobile was on December 13th., 1936 being driven on the Old Clarksville Highway near Abernathy's Store in Cheatham County, Tennessee, by the said Jimmie Long who is a son of the said J. E. Long, and who was driving the same with the knowledge and consent of his father, and as agent for his father and on the business of his said father, the defendant J. E. Long, by the operation of which automobile at said time it became the duty of the defendant Jimmie Long to so operate said automobile as not to endanger, or be likely to endanger the lives of other people lawfully upon and using said highway, and on said date the said Jimmie Long was operating the said automobile with the knowledge and consent of his father, the defendant J. E. Long, and as a family car. While traveling in a southerly direction on said highway the said Jimmie Long was operating said automobile in such a careless, negligent, reckless and heedless manner, being then and there in an intoxicated condition and under the influence of alcohol, by reason of which he ran said automobile against and upon the plaintiff, knocking her down and dragging her for some distance, as the result of which the plaintiff was injured severely in her person as follows: (then follows averments with respect to plaintiff's injuries).

"Plaintiff alleges that her injuries have been wrongfully and unlawfully inflicted upon her as the direct and proximate result of the defendant Jimmie Long operating said automobile with the knowledge, consent and permission of his father, the defendant J. E. Long, all without fault or negligence on her part."

In the second count of the declaration, the plaintiff adopts all of the "statements, averments and allegations" of the first count, and then further avers that defendant Jimmie Long violated Section 2681 of the Code of 1932 (as amended), which section is as follows:

"Careless Driving. It shall be unlawful for any person to drive any vehicle upon any road, street or highway carelessly and heedlessly in willful or wanton disregard of the rights or safety of others, and without due caution and circumspection at a speed and in a manner so as to endanger or be likely to endanger any person or property." Pub.Acts 1931, ch. 82, sec. 1.

To the declaration of each plaintiff the defendants pleaded the general issue--that "they are not guilty of the matters and things in the plaintiffs' declarations alleged."

At the trial below, it appeared from undisputed evidence that the three minor plaintiffs were struck and injured by the automobile of J. E. Long while it was being driven along a highway in Cheatham County by Jimmie Long; but the defendants contended, and sought to prove, that the proximate--cause of the injuries to the plaintiffs was not negligence of Jimmie Long, but was negligence of said three minor plaintiffs, or that, if negligence of the minor plaintiffs was not the sole proximate cause of their injuries, they were guilty of negligence which contributed as a proximate cause of their injuries, and that the plaintiffs' actions were, therefore, barred.

With reference to the averment in the several declarations that, at the time the alleged injuries were inflicted upon the plaintiffs, the defendant Jimmie Long was "then and there in an intoxicated condition and under the influence of alcohol", the Trial Judge charged the jury as follows:

"While the plaintiffs, by amendment, likewise now allege in the first count that Jimmie Long was driving while drunk, ordinarily a statutory offense, their counsel state that they do not insist upon this as a claim of a statutory offense in the first count which would render it a mixed count, but merely include that charge in the common law negligence action as an element to be considered in determining whether or not there was general or common law negligence."

Defendant J. E. Long, for himself, further contended that the automobile which struck the minor plaintiffs, although owned by him and registered in his name, was not (as the plaintiffs averred in their declarations) used by defendant Jimmie Long or other members of J. E. Long's family as a "family automobile", and, at the time of the collision in question, his said son, the defendant Jimmie Long, was not driving said automobile as his (J. E. Long's) agent and on his business, or with his knowledge and consent.

We have thus undertaken to outline the determinative issues arising on the pleadings and evidence below.

Aseparate assignment of errors has been filed on behalf of each of the defendants--twenty-eight assignments for defendant J. E. Long (with numerous subdivisions under some of them), and fifteen assignments for defendant Jimmie Long.

It would extend this opinion to an inordinate length and serve no useful purpose to set out herein and...