McMahan v. Tucker
| Decision Date | 02 July 1948 |
| Citation | 216 S.W.2d 356 |
| Parties | McMAHAN et al. v. TUCKER et al. |
| Court | Tennessee Supreme Court |
Thomas Steele Jr., and B. C. Durham, both of Ripley, and Tyree B. Harris III and John J. Hooker, both of Nashville, for plaintiffs in error.
George C. Watkins, of Ripley, and Armstrong, McCadden, Allen, Braden & Goodman and John S. Porter, all of Memphis, for defendants in error.
These seven suits were separately filed in the Circuit Court of Lauderdale County, Tennessee, on March 16, 1946, by the several plaintiffs hereinbelow listed, against Joe M. Tucker, dba City Lumber Company, and Vernon Griffin, for damages sustained as the result of an automobile accident at about 2:00 a.m. on March 19, 1945, as follows:
Hannah Sue McMahan, for personal injuries, in the sum of $10,000;
Allan McMahan, for personal injuries, loss of services of his wife and damages to his automobile, in the sum of $2,500;
Walter R. Caldwell, Administrator, for the wrongful death of his intestate, Cora B. Caldwell, in the sum of $50,000;
Walter R. Caldwell, Administrator, for the wrongful death of his intestate, H. D. Caldwell, Sr., in the sum of $50,000;
Dorothy Crihfield Caldwell, surviving widow, for the wrongful death of her husband, Robert Lee Caldwell, in the sum of $50,000;
Dorothy Crihfield Caldwell, for her own personal injuries, in the sum of $50,000;
Mary Carol Caldwell, a minor, by next friend and regular guardian, Dewey Crihfield, for personal injuries, in the sum of $10,000.
The parties are here referred to as they stood in the Court below.
The declarations filed by plaintiffs are practically identical. In the first count it is alleged, in substance, that on or about March 19, 1945, at about 2:00 a. m. o'clock, the plaintiff Allan McMahan was driving his automobile, in which the other plaintiffs were riding, in a northerly direction on Highway 51, and when it reached a point about one mile South of the town of Ripley, Tennessee, there appeared suddenly in front of them an International truck, bearing 1944 license 42P2531, which truck was owned by the defendant Joe M. Tucker and which had been operated to said point by the said Vernon Griffin, while acting in the course and within the scope of his employment, and in furtherance of the business of the defendant Tucker; that said truck was negligently parked on the highway without lights, flares, or other warning devices, and without an attendant present to warn approaching vehicles of its presence; that because of these acts of negligence the automobile in which plaintiffs were riding collided with the parked truck, resulting in the death of three of the occupants and personal injuries to the remaining four occupants.
The second and third counts are based upon violation of statutes providing for certain precautions in parking or leaving trucks upon the highway. Williams' Code, § 2690. It is unnecessary to detail the allegations of the declarations, as there is no doubt that the truck was negligently parked on the highway. The only question being as to the person or persons guilty of this negligence.
The defendants filed pleas of general issue to each of the counts of the declarations.
The cases were consolidated and tried together. At the conclusion of all the evidence introduced on the trial, the defendants moved the Court for a directed verdict. These motions were overruled and the issues submitted to the jury, resulting in verdicts against both defendants, as follows:
Hannah Sue McMahan .................. $10,000
Allan McMahan, for personal injuries
and loss of services of
his wife ........................ 1,000
Damages to his automobile ......... 500
Walter R. Caldwell, Administrator
for the wrongful death of Cora
B. Caldwell ....................... 20,000
Walter R. Caldwell, Administrator
for the wrongful death of H. D
Caldwell, Sr. ..................... 25,000
Dorothy Crihfield Caldwell, surviving
widow, for the wrongful
death of Robert Lee Caldwell ...... 35,000
Dorothy Crihfield Caldwell, for
personal injuries ................. 10,000
Mary Carol Caldwell, by next
friend etc. ....................... 5,000
The defendants filed motions for a new trial in each of the cases, and the motion of the defendant Tucker in each of the cases was granted upon the ground that the Court should have directed a verdict for him at the conclusion of all the evidence, and proceeded therefore to set aside the verdicts of the jury and to direct a verdict for the defendant Tucker in each of the cases. As to the defendant Griffin, the Court suggested remittiturs as to certain of the plaintiffs, which were accepted by plaintiffs under protest, and his motions for a new trial were overruled. The respective verdicts of the jury were reduced upon the remittiturs to the following amounts:
Hannah Sue McMahan ................... $ 7,000
Walter R. Caldwell, Adm. for Cora
B. Caldwell ......................... 10,000
Walter R. Caldwell, Adm. for H
D. Caldwell, Sr. .................... 15,000
Dorothy Crihfield Caldwell, surviving
widow of Robert Lee Caldwell 25,000
Mary Carol Caldwell .................. 2,000
The verdicts of the jury against the defendant Griffin in the cases of Dorothy Crihfield Caldwell for personal injuries in the sum of $10,000 and Allan McMahan for personal injuries, loss of services of his wife and damages to his automobile in the aggregate sum of $1,500, were not reduced.
Thereupon, the respective plaintiffs filed motions for a new trial, assigning as error the action of the Court in directing the jury to return a verdict as to the defendant Tucker, which motions for a new trial were overruled and the plaintiffs have perfected their appeals in the nature of a writ of error to this Court, and have assigned errors.
The defendant Tucker has perfected his appeal in the nature of a writ of error, assigning as error the several grounds in his motion for a new trial not sustained by the trial Court in his directed verdict, as a defensive measure in the event the trial Court should be held in error in granting a directed verdict as to the defendant Tucker; and in which event the other alleged errors of the trial Court might be considered in his behalf.
The defendant Griffin has also perfected his appeal in the nature of a writ of error, and has filed his assignment of errors.
This therefore is a three-way appeal, and the case of each appellant will be considered and discussed separately in so far as this is possible or practicable.
The assignments of error filed by plaintiffs present the sole question as to whether the trial Court was in error in sustaining the motion of the defendant Joe M. Tucker for a directed verdict, on his motion for a new trial.
The principles applicable to directed verdicts have been so frequently announced that there can be no doubt as to the duty of this Court in considering the facts. The cases upon this subject are too numerous to be collated here. One of the latest and most concise statements upon this subject is found in the case of Tennessee Central Ry. Co. v. McCowan, 28 Tenn.App. 225, 188 S.W.2d 931:
With this principle in mind, we find that the defendant Joe M. Tucker operated a retail lumber business under the trade name of City Lumber Company. The truck involved in the accident belonged to him, and was ordinarily used in connection with his business. It had the name "City Lumber Company" painted on it and was registered in his name in Lauderdale County under license number 42P-2531. There is no question as to the ownership of this truck, nor as to the negligence of the operator of the truck who parked or stopped it on the highway in violation of law. The question for determination is — was there any material evidence that an employee of the defendant Tucker acting within the course and scope of his employment and in furtherance of the defendant's business, was guilty of this negligent act?
The defendant Tucker handled and at this particular time had in his place of business a quantity of American woven wire fencing, sometimes referred to in the record as "Page wire", which was a very scarce commodity and difficult to...
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