Monday v. Millsaps

• Decision Date: 23 June 1953
• Citation: 264 S.W.2d 6,37 Tenn.App. 371
• Parties: MONDAY et al. v. MILLSAPS. MONDAY et al. v. GATLIN.
• Court: Tennessee Court of Appeals

Page 6

264 S.W.2d 6

37 Tenn.App. 371

MONDAY et al. v. MILLSAPS.

MONDAY et al. v. GATLIN.

Court of Appeals of Tennessee, Eastern Section.

June 23, 1953 Certiorari Denied by Supreme Court Oct. 19, 1953.

Fowler, Long & Fowler, Foster D. Arnett, Wilbur W. Piper, Knoxville, for plaintiffs in error, Monday Trucking Co.

Poore, Cox, Baker & McAuley, Knoxville, Floyd H. Bowers, Clinton, for Roland Prince, Adm'r of Estate of Thomas G. Clynes.

Wilson & Joyce, Oak Ridge, for defendants in error.

HOWARD, Judge.

These consolidated actions for personal injuries grew out of an automobile accident which occurred on U. S. Highway 70, at a point about one mile east of Ozone, Tennessee, on June 21, 1951, at about 12:30 p. m., when a Buick automobile owned by C. Boyd Jones and driven by Thomas G. Clynes, collided with a Chevrolet truck owned by Lewis B. and Orville C. Monday, d/b/a Monday Trucking Company, and operated by one of their employees, Kenneth Ross. The automobile was traveling downgrade in an easterly direction toward Rockwood, while the truck was traveling in the opposite direction toward Crossville. The accident occurred on the north side of a curve in the highway when the Buick skidded from the right to the left into the path of the approaching truck, the left side of the car striking the front end of the truck. The curve in the highway was to the south, and the pavement at the point of the accident was from 24 to 26 feet wide, was in the process of being resurfaced, and was described as 'very slick'.

Plaintiffs, David Gatlin and Ronald F. Millsaps, were guests in the Buick, Gatlin riding on the right side of the front seat and Millsaps on the left side of the rear seat. Others riding in the car at the time included Jones, the owner, who was sitting on the right side of the rear seat, Clynes, the driver, who was fatally injured, and W. Howard Hildreth, who was sitting on the front seat between Gatlin and Clynes. They were all engaged in the insurance business at Oak Ridge, and were returning to their homes after attending an insurance convention at Nashville. At the time of the accident the Trucking Company was engaged in a state paving contract on Highway 67, south of Rockwood, and the truck involved was returning empty to the asphalt mixing plant near Crossville for a load of asphalt.

Each of the original declarations contained four counts, Millsaps suing the defendants for $75,000, and Gatlin for $5,000.

By the first counts the plaintiffs sued the Trucking Company, alleging that the truck driver prior to and at the time of the accident was guilty of both common law negligence and gross negligence. These counts allege in substance that plaintiffs were riding as guests in the Buick automobile, and that previous to the accident it had been raining and the pavement of the road was slick and slippery; that as the automobile approached 'a rather sharp curve' it skidded or went out of control, and that the defendant's 'employee was or should have been thoroughly familiar with the highway at this point, having traveled over it innumerable times, and was or should have been fully aware of the dangerous condition of the said road, the numerous sharp curves thereon and the tendency of the road to become slick when wet, but nevertheless the said * * * employee disregarding these conditions drove the said truck at a high and dangerous speed and without having the truck under control and without proper regard for other persons or vehicles upon the highway and without proper lookout for such other persons or vehicles. While so operating the said truck, the driver and employee of the defendant, * * * saw or should have seen at a great distance the automobile in which the plaintiff was riding go out of control and skid, but nevertheless the said driver of the defendant's truck continued proceeding at a high and dangerous rate of speed, proceeding straight into the automobile in which the plaintiff was riding as a guest, without making any due effort to avoid the accident and carelessly, wrongfully, wantonly and with gross negligence propelled his truck into and against the automobile in which the plaintiff was a passenger and guest with terrific force.'

Then follows a description of the plaintiffs' injuries, which will hereinafter be considered.

Under the second counts plaintiffs allege that the driver for the Trucking Company was driving the truck recklessly and dangerously, and at a high rate of speed in excess of 40 miles per hour, the speed limit for trucks, in violation of Code Sections 2681, 2682, 2682.1. All Sections refer to Williams' Tennessee Code.

Under the third counts the plaintiffs sued Dorothy B. Clynes, Administratrix of the estate of Thomas G. Clynes, on grounds of common law negligence. These counts allege in substance that plaintiffs were riding as guests in the Buick automobile, and that the driver, Thomas G. Clynes, 'while driving in a negligent and careless manner, without due caution considering the condition of the road and surrounding circumstances, lost control of the automobile and skidded sideways onto the wrong side of the highway, whereupon the automobile collided with great violence with the truck of the defendants, the Monday Trucking Company, being driven in the opposite direction in the manner described and set forth in the First Count of this declaration.'

Under the fourth counts the plaintiffs sued the Clynes estate alleging that the driver of the Buick was operating the car dangerously and recklessly, in violation of Code Sections 2681, 2682.

It appears that after process was served on Lewis Monday and the Clynes estate, Monday filed a plea in abatement to each of the suits on the ground that he and his brother were residents of Knox County, and that inasmuch as all the defendants were not alleged to be joint tort feasors there was a misjoinder of parties defendant, and that he and his brother could not be required by counterpart summons to litigate wrongs in Anderson County where the declaration failed to allege that the Anderson County defendant was not jointly liable.

To each of the declarations the Clynes estate filed a demurrer on grounds (1) misjoinder of parties defendant, and (2) that counts 1 and 2 of the declaration were inconsistent with counts 3 and 4. Thereupon the plaintiffs upon application were permitted by the court to amend each count of their declarations by alleging that the accident resulted from the 'combined and concurrent' negligence of each of the defendants, and the amount sued for by Millsaps was increased from $75,000 to $100,000. (Later during the trial the amount was increased, over objections of the Trucking Company, to $115,000.) Plaintiffs further amended the third count of their declarations by alleging that the driver of the Buick, 'while driving in a negligent and careless manner, without due caution and at an improper speed considering the condition of the road and surrounding circumstances and by improper application of the brakes and turning of the wheels, lost control of the automobile and skidded sideways on the wrong side of the highway, whereupon the automobile collided with great violence with the truck of the defendants, the Monday Trucking Company, being driven in the opposite direction in the manner described and set forth in the First Count of this declaration.'

The plea in abatement and both demurrers were overruled, each of the defendants duly preserving exceptions. Later the plaintiffs filed amended declarations which contained all of the averments and allegations of the original declarations and amendments thereto.

The defendants, Lewis B. Monday, et al., filed a plea of general issue, and being required upon motion to plead their defenses specially, they specifically denied that plaintiffs were guests in the Buick which, it was admitted, collided with one of their trucks operated that the accident occurred They admitted that the accident occurred on a south curve in the highway when the Buick automobile, which was traveling downgrade in an easterly direction, got out of control. They averred that the Buick got out of control because it was traveling at a high rate of speed; that when the brakes were applied it skidded onto the north side of the highway 'crosswise of traffic going in a westerly direction' in front of the approaching truck. They specifically denied acts of negligence charged to their driver, Kenneth Ross, and averred that the truck was at all times on its proper side of the road and traveling at a lawful and reasonable rate of speed; that their driver upon seeing the Buick out of control applied his brakes immediately in an effort to stop the truck and avoid the accident. They further averred that the accident was solely due to the negligence of the driver of the Buick in which the plaintiffs were riding, and to whom the plaintiffs made no protest. They denied that the highway was wet or slick, or that it had been raining, or that there was any negligence combined or concurrent on their part or on the part of their agent.

The Clynes estate, through Dorothy B. Clynes, Administratrix, filed a plea of general issue and numerous special pleas in which it was admitted that her husband, Thomas G. Clynes, who was killed in the accident, was the driver of the Buick car. She averred that the highway at the point of the accident was being resurfaced and that following a rain it was extremely slick, and that her husband was without knowledge of these facts and was without fault in the operation of the car; that the plaintiffs, who were riding in the car, were guilty of negligence in failing to exercise ordinary care for their safety and in failing to warn the driver of the dangerous condition of the highway. She specifically averred that 'the Monday Trucking Company was guilty of negligence in the operation of their said truck and such negligence was the sole, prime and proximate cause of the alleged...