McMahan v. McMahan
| Decision Date | 17 September 1954 |
| Citation | 276 S.W.2d 738,38 Tenn.App. 498 |
| Parties | Lloyd Baxter McMAHAN v. Odie L. McMAHAN. Lloyd Baxter McHAHAN v. Joseph L. McMAHAN, b/n/f. |
| Court | Tennessee Court of Appeals |
Wynn & Wynn, Sevierville, Wayne Parkey, Knoxville, for plaintiff in error.
Ogle & Ogle, Sevierville, for defendants in error.
These consolidated actions for damages grew out of an automobile accident in which the plaintiffs, Odie L. McMahan and his minor son, Joseph L. McMahan, age 16, sustained personal injuries while riding in an automobile owned and driven by the defendant, Lloyd B. McMahan, a cousin of the plaintiffs. The accident occurred on Highway No. 3, in the town of Creston, Ohio, on the night of August 4, 1953, about 11:15 P. M. The car involved was traveling north on said highway enroute to the City of Cleveland, Ohio, where the plaintiff, Odie L. McMahan, and the defendant were employed. They were returning to Cleveland from Sevier County, Tennessee, where they had previously visited relatives, and at the time of the accident the plaintiffs were asleep. The highway in the town of Creston curved sharply to the right, and the accident occurred when the defendant was unable to make this curve, losing control of his car which crossed the highway and struck a telephone pole on the west or left side with great force, resulting in the plaintiffs' injuries. According to an agreed stipulation, the highway for several hundred feet south of the curve was straight and was marked by numerous road signs. Beginning about 4/10ths of a mile south of the curve there was a sign reading 'Speed Limit 35', and spaced between this sign and the curve were 4 other warning signs, as follows: 'Village of Creston Traffic Laws Enforced', 'Slow To 20', 'Curve Danger 500 Feet', and beyond this, 118 yards from the entrance to the curve, there was an illuminated arrow sign indicating a curve to the right. The highway was 45 feet wide, the weather was clear, and the pavement was dry.
The first counts of the declarations allege in substance that the plaintiffs were riding as passengers in the defendant's automobile when the accident occurred, and that prior to and at the time the defendant was driving his automobile in a wilful, wanton, heedless and unlawful manner, without having said automobile under control, and at a high and dangerous rate of speed of more than 70 miles per hour, in violation of the speed laws of the State of Ohio; that prior to the accident the plaintiffs had agreed with the defendant to bear their proportional part of the automobile expenses of the trip to Tennessee and return, and that the agreement had been complied with and accepted by the defendant; that the road signs on the east side of the highway were in plain vision of the defendant which he drove by in wilful, wanton and utter disregard of said signs.
The second counts of the declarations allege violation of the following provisions of Section 6307-21 of the 1945 Supplement of the Code of the State of Ohio:
'No person shall operate a motor vehicle, trackless trolley or street car in and upon the streets and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface and width of the street or highway and of any other condition then existing, and no person shall drive any motor vehicle, trackless trolley or street car in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.
'It shall be prima facie unlawful for the operator of a motor vehicle, trackless trolley or street car to operate the same at a speed not exceeding the following:
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'Twenty-five miles per hour in all other portions of a municipal corporation, except on state routes and on through highways outside business districts.
'Thirty-five miles per hour on state routes or through highways within municipalities outside business districts.
'Fifty miles per hour on highways outside of municipal corporations.
'It shall be prima facie unlawful for any person to exceed any of the speed limitations in this or in other sections of this act.'
The defendant filed pleas of not guilty and numerous special pleas in which it was denied specifically that plaintiffs were riding as passengers in his car; denied that there was any contract or agreement expressed or implied whereby either the plaintiff or his son were to bear their proportionate part of the expenses of the trip, and denied that such an agreement was ever made or that either of the plaintiffs had ever offered or tendered any compensation to the defendant for said trip, and that none had been accepted by him. He averred that the purpose of the automobile trip to Tennessee was exclusively of a social nature and that instead of plaintiffs being passengers, as alleged, they were riding in his car as guests as defined by Section 6308-6 of the General Code of the State of Ohio, known as the 'Guest Statute', which reads as follows:
'The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss of damage arising from injuries to or death of a guest, resulting from the operation of said motor vehicle, while such guest is being transported without payment therefor in or upon said motor vehicle, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.'
For further plea the defendant denied specifically that he was driving in a wilful, wanton, heedless and unlawful manner, as alleged, or that he was driving 70 miles per hour, or that he did not have his car under proper control. He averred that the accident was due solely to the presence of a very sharp, dangerous and deceptive curve in the highway, and that he did not know of the road signs indicating danger.
At the conclusion of the plaintiffs' proof, the defendant moved generally for a directed verdict, which motion the trial court overruled. The defendant also moved that the plaintiffs he required to elect whether they were proceeding on the theory that they were passengers or were guests, which motion the trial court likewise overruled, the defendant taking exceptions to the trial court's action on both motions. The defendant did not introduce any proof.
The trial resulted in jury verdicts for the plaintiffs for the following amounts: For Odie L. McMahan, $10,000, and for Joseph L. McMahan, $1,000. These verdicts were approved by the trial court and judgment was accordingly entered. Thereafter the defendant's motions for a new trial filed in both cases were overruled, and he has appealed in error to this court, and errors have been assigned which will hereinafter be considered. No question is made here that either of the verdicts was excessive.
Under assignments 1, 7 and 9 the defendant contends that the trial court erred in refusing to sustain his motion for a directed verdict made at the conclusion of the plaintiffs' evidence because there was no evidence on which the cases should have been submitted to the jury. While these assignments involve a review of the evidence, such review is only to determine if there is any material evidence to support the verdicts. In such review we are required to take the strongest legitimate view of all the evidence favorable to the plaintiffs, disregard all inferences to the contrary and indulge all reasonable inferences to uphold the verdicts. Jarratt v. Clinton, 34 Tenn.App. 670, 241 S.W.2d 941.
Applying this rule to the instant cases, was there substantial evidence on which the cases should have gone to the jury on the questions of whether (1) the plaintiffs were riding as passengers in the defendant's car, and if so, (2) was the defendant guilty of ordinary negligence in the operation of his automobile at the time of the accident. In disposing of these questions, it is conceded that the decisions of the Ohio Courts are controlling.
The undisputed evidence showed that for several weeks before the accident the plaintiff, Odie L. McMahan, and the defendant worked together as bricklayers for the same concern in the City of Cleveland, Ohio; that they lived at the same street address in Cleveland, and that the plaintiff rode to and from work daily with defendant in his automobile; that about a week prior to the accident, Odie told the defendant he wanted to go to Blount County, Tennessee, to visit his family, and describing the purposes for his trip he testified as follows:
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'
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Describing the plans and the final arrangements made with the defendant for the trip, this plaintiff further testified:
'Q. Now, Odie, you came down here with the defendant, why did you come with the defendant Lloyd Baxter McMahan? A. Well, about a week before we started, I mentioned to Lloyd, * * * I says, 'Lloyd, I have got to go home and visit my...
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