Olins v. Schocket

• Decision Date: 13 May 1948
• Citation: 215 S.W.2d 18,31 Tenn. App. 346
• Parties: OLINS et al. v. SCHOCKET et al.
• Court: Tennessee Court of Appeals

215 S.W.2d 18

31 Tenn.App. 346

OLINS et al. v. SCHOCKET et al.

Court of Appeals of Tennessee, Eastern Section.

May 13, 1948

Certiorari Denied by Supreme CourtOctober 16, 1948.

Appeal in Error from Circuit Court, Hamilton County; Fred Ballard Judge.

Actions by Olin Schocket and others, against Philip Olins and Jerome Olins as owner and driver for personal injuries sustained when their automobile in which plaintiffs were riding as guests collided with a truck.From the judgments, defendants appeal in error.

Judgments affirmed.

Sam J. McAllester, Sr. and Sam J. McAllester Jr., both of Chattanooga, for plaintiffs in error.

Charles A. Noone and Dan M. Byrd, Jr., both of Chattanooga, for defendants in error.

HOWARD Judge.

These cases were tried together in the Circuit Court of Hamilton County and involve actions for personal injuries growing out of an automobile accident which occurred near Cartersville, Georgia, on December 27, 1945, when the automobile in which the injured parties were riding as guests collided with a bakery truck.

Olin Schocket, Fannie Schocket and Lou Schocket will hereinafter be referred to as plaintiffs, and Philip Olins and Jerome Olins as defendants, as they appeared in the trial court.

Fannie Schocket is a sister of the defendant, Philip Olins, and is the aunt of the other defendant, Jerome Olins, who is the son of Philip Olins and Lizzie Olins.Olin Schocket is the minor son of Lou and Fannie Schocket and the nephew of Philip Olins and a first cousin of Jerome Olins.The Schockets are residents of the State of New York and the Olins are residents of the city of Chattanooga.

The parties have agreed that the Georgia law controls and that a guest cannot recover in an action for personal injuries unless the host driver was at the time of the accident guilty of gross negligence.

Section 68-301 of the Georgia Code regulating the speed of automobiles provides as follows: 'Speed Limit. * * * all passenger motor veicles operated on the public streets and highways of this State and having pneumatic tires are authorized to operate at a speed up to but not exceeding 55 miles per hour.'

And Georgia Code, Section 105-203 defines slight diligence and gross negligence in the following words: 'In general slight diligence is that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances.Applied to the preservation of property, slight diligence means that care which every man of common sense, howsoever inattentive he may be, takes of his own property.The absence of such care is termed gross negligence.'

Each of the declarations charge that the defendantJerome Olins wrongfully, carelessly and with gross negligence drove his automobile in which plaintiffs were riding as guests at an unlawful, dangerous and excessively high rate of speed, to wit: more than 55 miles per hour; that because of inattention and failure to keep a proper lookout ahead, the defendant drove his automobile from the highway, or permitted it to leave same, which wrongful acts resulted in inflicting serious personal injuries on plaintiffs.

To each of the declarations the defendants interposed pleas of not guilty and filed numerous special pleas in which they denied that Jerome Olins, driver of the automobile, was guilty of gross negligence; denied that he was driving in excess of 55 miles per hour when the accident occurred, and averred that just before the accident occurred he was confronted by an emergency created by an approaching large freight truck followed by a passenger car, both of which encroached upon the west side of the road directly in front of him; that because of an emergency suddenly created, the accident was unavoidable.

A motion for a directed verdict was made on behalf of the defendants at the conclusion of the plaintiffs' evidence and renewed at the conclusion of all the evidence, which motions the trial court overruled.

Upon hearing the evidence the jury returned three separate verdicts against the defendants, as follows: Fannie Schocket for personal injuries, $7,250, Olin Schocket for personal injuries, $1,000; and Lou Schocket for loss of services and medical expenses, $8,000; making a total sum in judgments of $16,250.Defendants seasonably filed motions for new trials, which motions were overruled by the trial judge, and defendants have appealed in error to this court.

In December, 1945, while Philip Olins and his wife, Lizzie Olins, were in Hot Springs, Arkansas, Fannie Schocket and her minor son, Olin, visited Chattanooga and were guests of Jerome in the Olins home.Lou Schocket, the husband of Fannie Schocket, remained in New York.

On December 27th, Jerome Olins agreed to drive his aunt and his cousin to Atlanta, Georgia, a place to which they had never been, and to which place his aunt wanted to go for historical reasons, principally because she had read the novel 'Gone With the Wind' and wished to see Atlanta.

On the aforesaid date, Jerome, driving his father's one-seated Ford coupe (the family purpose doctrine was admitted by stipulation) and accompanied by his guests, left Chattanooga for Atlanta about 9:00 o'clock a. m. They first drove to the Jeannette Hosiery Mill located on Williams Street in the city of Chattanooga, where the defendant performed some chores which took about 20 minutes.Thereafter they left Chattanooga and drove to Calhoun, Georgia, where they stopped for the second time for 20 or 30 minutes for refreshments.

The accident occurred at 11:15 a. m., 69 miles south of Chattanooga and six miles north of Cartersville, Georgia, on Highway 41 at a point 70 feet south of the Bearden home, which witnesses have described as being located on the east side of the highway across the highway from the Jones Tourist Court.Here the asphalt pavement was 19 feet wide with a shoulder on the west side of the road six to eight feet wide between the pavement and the ditch.Made of packed dirt and covered with gravel, the shoulder was used by parked automobiles and pedestrians traveling the highway.Between the west edge of the pavement and the shoulder of the road, there was a slight depression or rut, one or two inches deep, and on the west side of the shoulder the ditch was two to three feet deep.

Beginning at a point near Bell's Store which is located about 900 feet north of the Bearden home, the highway was straight for approximately one-half mile with nothing to obstruct the vision of the driver of an automobile.Upon entering the straight stretch of highway at Bell's Store, the defendant saw near the Bearden home traveling toward him on the east side of the highway at about two miles an hour a mule and wagon owned and driven by Oscar Canty.However, the defendant did not see an approaching northbound freight truck and passenger car overtaking the Canty wagon until the two vehicles were in the act of passing the wagon, at which time the defendant insisted they encroached upon the west side of the road in front of him, forcing him to drive the two right wheels of his car onto the right shoulder of the road in order to avoid a head-on collision with the truck.

Defendant after passing the northbound truck and automobile returned to the paved portion of the highway, where his car barely missed striking the Canty wagon, whose right wheels were near the east shoulder of the road.To avoid a collision with the wagon, defendant pulled his car to the right, causing all four wheels to go completely off the pavement onto the right shoulder of the road where it continued for a distance of approximately 100 feet.He then drove to the left and diagonally across to the east side of the road where the front of his car struck an approaching northbound bakery truck at or near its left front wheel, knocking the truck completely off the highway for a distance of 17 feet.The impact of the collision knocked the right door of defendant's car open and the two plaintiffs, as well as the defendant, were thrown from the car onto the pavement and shoulder of the road, thereby causing serious personal injuries to plaintiffs.Thereafter, defendant's car turned around two or three times, re-crossed the road to the west side where it stopped in a field just off the right shoulder of the road.We shall further on in this opinion discuss more fully the extent of plaintiffs' injuries.

From the point where the defendant's automobile first left the pavement to where it barely missed striking the Canty wagon was 60 feet, and from the Canty wagon to where it collided with the northbound bakery truck was approximately 145 feet, making a total of more than 200 feet from where defendant's automobile first left the pavement to where the accident occurred.

By assignments Nos. 1, 2, 3, 6 and 7, defendants have insisted there was no evidence to support the verdict; that the verdict was against the greater weight of the evidence; that the verdict was contrary to the law; that the trial judge erred in refusing to grant motions for directed verdicts at the conclusion of plaintiff's proof and at the conclusion of all the proof.

Attorneys for defendants in their excellently prepared briefs filed in behalf of their clients have admitted that under the Georgia Court decisions the question of gross negligence upon disputed facts is solely a jury question.

Inasmuch as the burden of establishing gross negligence as defined by the Georgia Code was upon the plaintiffs, the chief issue before this Court now is whether there was sufficient evidence adduced by the plaintiffs to support the verdicts of the jury.

Olin Schocket, age 11, testified that the speedometer on the automobile in which they were riding was broken and that they had...