Moore v. Watkins

• Decision Date: 09 May 1956
• Citation: 41 Tenn.App. 246,293 S.W.2d 185
• Parties: J.C. MOORE, Adm'r, Plaintiff in Error v. Jesse WATKINS, Adm'r, Defendant in Error. 41 Tenn.App. 246, 293 S.W.2d 185
• Court: Tennessee Court of Appeals

Page 185

293 S.W.2d 185

J.C. MOORE, Adm'r, Plaintiff in Error v. Jesse WATKINS, Adm'r, Defendant in Error.

41 Tenn.App. 246, 293 S.W.2d 185

Court of Appeals of Tennessee, Eastern Section.

May 9, 1956 Certiorari Denied by Supreme Court July 20, 1956.

[41 TENNAPP 247] O.T. Sloan, Madisonville, and Frank N. Bratton, Athens, for plaintiff in error.

Goddard & Gamble, Maryville, for defendant in error.

McAMIS, Presiding Judge.

To recover for the death of his intestate, J.C. Moore, administrator of the estate of Chester Lee Moore, instituted this suit against Jesse Watkins, administrator of the estate of Robert Bolinger, in whose automobile Chester Lee Moore was riding at the time of his death. As a result of the accident Bolinger was also killed and there were no eyewitnesses.

At the conclusion of the evidence for the plaintiff the trial court directed a verdict for the defendant on the ground that, under all the circumstances, a jury could only speculate as to which of the parties was driving and that, although there was proof that the automobile was owned by Bolinger and registered in his name, no presumption would arise under Code, Secs. 2701, 2702, that he was driving since the statute only supplies a presumption that the owner or his agent was driving at the time plaintiff's intestate met his death and there was, therefore, an equal presumption that Moore was driving as Bolinger's agent.

Plaintiff Moore, administrator, has appealed assigning as error the action of the Court in directing a verdict, relying principally on Burkett v. Johnston, Tenn.App., 282 S.W.2d 647, 650, in which certiorari was denied May 6, 1955. The instant case was tried on September 1, 1955, and it is doubtful if the learned trial judge had the benefit of Judge Carney's opinion in that case when he acted on the motion for directed verdict. In that case also both occupants were killed and there were no eyewitnesses. There, however, the circumstances bearing on [41 TENNAPP 248] the identity of the driver were allowed to go to the jury which found that the intestate owner of the car was driving. This court held that there was no error in submitting the case to the jury.

After reviewing the authorities dealing with the right to have a jury pass upon the question of which of two theories depending upon circumstantial evidence is the more probable, the Court there said:

"When we analyze and review the evidence presented in behalf of plaintiff's case in light of the expressions set out above, we are of the opinion that the jury might well have inferred that since the deceased, Burkett, was proven to be the owner of the passenger automobile involved in the death, and the deceased, Burkett, was found dead under the wheel of his automobile, that Burkett was driving said automobile at the time of his death. Likewise, we think that since the deceased, Johnston, was found dead on the seat beside Burkett, and there was no evidence indicating to the contrary, the jury could have found that Johnston was an invited guest in the car of Burkett."

In the Burkett case the position of the bodies was more favorable to the theory of the plaintiff but, as will be seen, in this case a violent impact with a barricade and a tree destroys or greatly lessens the probative force to be given that circumstance and there are other circumstances which in our opinion entitled the plaintiff to have a jury weigh the evidence in the light of the presumption or inference that the owner was driving where it is shown that he was riding in the car at the time of the accident.

[41 TENNAPP 249] The proof shows that Chester Lee Moore was 19 years of age. Young Bolinger was only a little older. Moore's father testified that Bolinger came to his home about 7 P.M. on October 13, 1954, and called Chester "and got him in the car and took him away." There is no proof that Moore was seen driving the car at any time before 11 P.M. when the accident occurred. The witness Steele testified that the two young men visited his beer tavern twice during the evening and left the second time about 8:30 in company with two girls. He did not observe which one was driving. The girls were not called as witnesses and there is no proof that Moore and Bolinger were seen by anyone else before the accident.

The accident occurred in the Town of Madisonville at a right angle curve to the left as the car approached from the west. Mr. Witt, a member of the Bar, testified that he heard the car pass his home a short distance west of the curve at such a speed that he realized an accident would occur at the curve. He heard a loud noise resulting from the impact of the car with a barricade and a large tree. Other witnesses testified that tracks led through a hole in the barricade to a tree. Other witnesses testified that tracks led through a hole in the barricade to a tree. The car settled with its front against or near the tree but its rear was approximately 6 feet north of the tracks and a few feet from an undamaged portion of the barricade. Bolinger's body was picked up south of the car and about even with the right rear door which was found open. Moore's body was found on the front seat with his buttocks under the steering wheel. His head was resting on the front seat facing toward the front and about two feet from the right end of the seat. His feet were on the floor board.

The impact drove the right front wheel through the floor board on the right catching Moore's arms between [41 TENNAPP 250] the wheel and front seat. Maroon paint matching the color of the wheel was found on his right pant leg. Shoe laces similar to those he was using were found on or near the wheel. A sun visor, found on the right of the floor, carried blood spots in which was matted hair matching that of Moore and unlike that of Bolinger.

The proof shows that bark on the tree had been disturbed as high as a tall man standing on the ground could reach and that there was a "crease" in the top of the car indicating that the top had been violently thrown against the trunk of the tree. If so, the car would have been resting on its front end and the rear almost in a vertical position.

Defendant insists that if Bolinger had...