Morris v. Bolling

• Citation: 218 S.W.2d 754,31 Tenn.App. 577
• Parties: MORRIS et al. v. BOLLING.
• Decision Date: 14 July 1948
• Court: Court of Appeals of Tennessee

218 S.W.2d 754

31 Tenn.App. 577

MORRIS et al. v. BOLLING.

Court of Appeals of Tennessee, Eastern Section.

July 14, 1948

Certiorari Denied by Supreme Court March 11, 1949.

Appeal in Error from Law Court, Sullivan County; Shelburne Ferguson Judge.

Action by W. I. Bolling against Henry M. Morris and Harvey Knight partners, doing business as the Checker Cab Company, for damages resulting when plaintiff's parked automobile was struck by defendants' taxicab. From an adverse judgment defendants appeal in error.

Judgment affirmed.

Curtin & Haynes, of Bristol, for plaintiffs in error.

Lyle Burrow, of Bristol, for defendant in error.

HOWARD Judge.

The parties will be referred to as they appeared in the Court below.

This is an action in which the plaintiff, W. I. Bolling, obtained a judgment in the Law Court at Bristol against defendants, Henry M. Morris and Harvey Knight, partner, doing business as the Checker Cab Company for the sum of $900.00 for damages to Bolling's automobile.

The first count of plaintiff's declaration reads as follows:

'The Plaintiff sues the Defendants for $1000.00, as damages and for his cause of action shows the following:

'That heretofore to-wit on or about the ___ day of May, 1947, Plaintiff was the owner of a Plymouth Sedan Automobile which was parked on Pennsylvania Avenue, in the City of Bristol, Tennessee, in a lawful manner and at a place where it had a lawful right to be, when his said automobile was struck with great force and violence by an automobile owned and being operated in a careless, negligent and unlawful manner at a high and dangerous rate of speed in violation of the laws of the State of Tennessee and the Ordinances of the City of Bristol, Tennessee and in utter disregard of the rights of persons and their property lawfully on the street.

'Plaintiff avers that said collision and the resulting damages to his property was due to the wrongful negligence of the defendants through their agents and servant in that the driver of defendant's taxi picked up an intoxicated man for the purpose of taking him home and while said intoxicated person was in the taxi he was left in the taxi alone while the driver delivered a package into a house. Said driver negligently left the car motor running or left the keys in the car while he delivered the package and said intoxicated man took charge of the car and drove it up Pennsylvania Avenue in a wild, careless and unlawful manner as aforesaid and into the automobile belonging to Plaintiff with the result that his automobile was wrecked and completely demolished to his damage $1,000.00, for which he sues and demands a jury to try the issues.'

Defendants interposed a demurrer to the first court of plaintiff's declaration and filed a plea of general issue to the second count.

In their demurrer to the first count of the declaration, defendants insisted that the declaration did not allege at the time of the accident that defendants' taxicab was being driven by a servant or employee of defendants; that the declaration did not show that the taxicab was on business for the defendants; that there is no allegation of negligence on the part of defendants, their agent, servants, or employees; that the declaration shows that the accident was caused by the intervening act of a third party for which defendants would not be responsible.

Our Courts have consistently declined to decide the question of negligence upon demurrer where plaintiff's declaration is technically sufficient. Sledge v. Gayoso Hotel Co., C.C., 43 F. 463. We think that the trial judge correctly overruled the defendants' demurrer since plaintiff's declaration shows a substantial cause of action. Code Section 8729; Jackson v. B. Lowenstein & Bros., Inc., 175 Tenn. 535, 542, 136 S.W.2d 495; Wheeler v. City of Maryville, Tenn.App., 203 S.W.2d 924.

Upon the demurrer being overruled the defendants filed a plea of general issue to the first count of the declaration, and at the conclusion of all the evidence, the defendants made a motion for a directed verdict, which the trial Court denied.

After judgment defendants seasonably filed a motion for a new trial which the trial judge overruled and defendants have appealed in error to this Court.

The facts of the case are not in dispute and are as follows:

On May 16, 1947, John R. Baumgardner, driver of one of defendants' taxicabs, picked up a passenger in down town Bristol by the name of Bruce Dowell, who operated a restaurant across the street from the Checker Cab Company, for the purpose of taking him home at 1103 Shelby Street. Instead of going the regular and quickest route to the Dowell home, Baumgardner decided to go out of his way to deliver some packages at 135 East State Street, and so he took Dowell with him. When Baumgardner parked his cab by the curb in front of the East State Street address, he shut off his motor but left the key in the ignition switch. He said that when he left the cab to go into the apartment to deliver the packages, Dowell appeared to be asleep or had passed out from drinking too much whiskey, because he was slumped down in the front seat. Upon his return after having made the deliveries Baumgardner found that his cab was gone, and the next time he saw it it was on Pennsylvania Avenue where it had run into and wrecked plaintiff's 1940 Plymouth automobile which was properly parked. Defendants' cab had also struck and damaged another parked car owned by Mrs. C. S. Currier.

Dowell did not work for the Cab Company and did not have permission to drive the cab, and Baumgardner said that when he left the key in the switch it never occurred to him that Dowell might attempt to drive the cab. Witnesses at the scene of the accident testified that Dowell drove the cab and was in an intoxicated condition.

It is insisted on behalf of the defendants that the act of their driver in leaving the key in the switch of the cab with Dowell drunk and asleep on the front seat was not negligence and was not the proximate cause of the accident; that the intervening act of Dowell in starting the cab while their driver was away absolves the defendants of liability for the damages plaintiff suffered; that the negligent manner in which Dowell drove the cab was the proximate cause of the accident.

Vol. 38 Am.Jur., Sec. 70, page 726 refers to causes anticipated or reasonably foreseeable, as follows 'The rule that the causal connection between a person's negligence and an injury is broken by the intervention of a new, independent, and efficient intervening cause so that the negligence is not actionable, is subject to the qualification that if an intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of an injury, and he may be held liable, notwithstanding the intervening cause. The intervention of independent intervening causes will not break causal connection if the intervention of such forces was itself probable or foreseeable. Any number of...