Pikeville Fuel Co. v. Marsh

• Decision Date: 10 November 1948
• Citation: 34 Tenn.App. 82,232 S.W.2d 789
• Parties: PIKEVILLE FUEL CO. et al. v. MARSH.
• Court: Tennessee Court of Appeals

Page 789

232 S.W.2d 789

34 Tenn.App. 82

PIKEVILLE FUEL CO. et al. v. MARSH.

Court of Appeals of Tennessee, Eastern Section.

Nov. 10, 1948 Certiorari Denied by Supreme Court May 5, 1949.

Sizer & Cameron, Chattanooga, Tom Greer, Jr., Dunlap, for plaintiffs in error.

Lewis S. Pope, Nashville, for defendant in error.

GOODMAN, Judge.

This is an appeal in the nature of a writ of error from a judgment in favor of Lee Marsh and against Pikeville Fuel Company and Logan Holland in the amount of $10,000.00. The parties will be hereinafter referred to in accord with their respective capacities in the court below.

The suit grows out of a bus accident occurring on March 29, 1946, within but near the corporate limits of Pikeville, Tennessee, wherein the plaintiff, Lee Marsh, received painful and serious injuries, including a fracture or dislocated sacro-iliac joint and fractures of the pubic bones, resulting in a permanent physical impairment. No question is made as to the amount of the verdict so that it is unnecessary to further consider the extent of the injuries received.

There is little or no dispute concerning the manner in which the accident occurred. It appears from the evidence that the defendant, Pikeville Fuel Company, owned and operated a bus to and from Pikeville and vicinity and the mines operated by it some seventeen miles distant from Pikeville. Thus there was provided transportation to a number of its employees, for which service no charge was made. The plaintiff, Lee Marsh, was one third owner of the property on which the mine operated by the Pikeville Fuel Company was located. He was a brother-in-law of the defendant, Merriman, who also owned a one-third interest in the mine property and was an officer in the defendant corporation. As foreman, in charge of the mines, plaintiff had full authority over, and the right to hire and discharge the employees; as well as control over the operation of the transportation bus, which he kept at his own home, and used on occasion for his own purposes. Sometimes he drove the bus to and from the mines, but the defendant Holland drove it most of the time. On the occasion in question, the bus, driven and operated by the defendant, Holland, approached and entered the city limits of Pikeville. The plaintiff and one W. N. Girdley were seated with Holland in the cab of the bus. In the rear, or the main body of the bus which was not connected by passageway or door with the cab, were seated Wade Smith, Virgil Gill and Junior Blaylock. Other employees had been riding in the rear of the bus but had gotten out prior to its arrival in Pikeville. At a point described as just in front of Sam McReynolds' residence in Pikeville, a car was parked on the same side of the road the bus was travelling on its approach into Pikeville. As the bus neared this car, another car was seen coming from the opposite direction. At first, Holland, then driving at a speed described as 'fifty miles an hour or better', appeared to speed up in an attempt to pass the parked car, but, apparently believing that he could not execute this maneuver safely, he applied the brakes and slowed down. In so doing, the right wheels of the bus hit the ditch on the side of the road. The bus travelled about seventy feet in the ditch, then took a quick turn to the left. The driver being unable to straighten it back up, the bus turned over in the middle of the highway. It turned over on the right side, which was the side on which the plaintiff was seated, and Girdley and Holland fell on him.

The plaintiff, in his declaration, in substance, charged that the defendant Pikeville Fuel Company, in accordance with an agreement with the plaintiff and others working in its mines, granted transportation to and from the mines each day. Upon the occasion in question, its employee, the defendant, Logan Holland was driving and operating said bus, pursuant to said agreement. He charged that the accident occurred substantially as above stated and that on said occasion the defendant Holland was driving negligently and carelessly and in such manner as to lose control of the bus and cause it to turn over. The defendants pleaded the general issue to the declaration. By amendment to the declaration the plaintiff alleged, in substance, that the plaintiff and other employees of the Pikeville Fuel Company '* * * were invited or permitted by the two said defendants to ride in said bus to their places of work at the mines in the morning and from their places of work, after the day's work had been finished, to or near their homes in the evening. There was no contract nor was it a part of the employment contract between plaintiff and the defendants, Pikeville Fuel Company and/or J. W. Merriman, that this transportation to and from the mines to be furnished with or without compensation, that he was simply permitted by common consent to ride in the bus as hereinbefore indicated.' Pleading to the amended declaration, the defendants, J. W. Merriman, Betty Jean Merriman and Pikeville Fuel Company, said that the amended declaration '* * * is a separate, distinct and different cause of action from the cause of action set forth in the original declaration in this case, and that the things and matters alleged in said amended declaration occurred more than one year before the filing of said amended declaration, and are therefore barred by the one year Statute of Limitations of Tennessee, as provided in such cases'. The defendant, Logan Holland, filed a similar plea to the amended declaration.

At the conclusion of all proof on behalf of the plaintiff, the suit was dismissed as to the defendants, Betty Jean Merriman and J. W. Merriman, individually. Also, at this juncture, the defendant Pikeville Fuel Company moved for a directed verdict, which motion was overruled. It, thereupon, announced that it would stand on the motion. It would offer no evidence. The defendant, Logan Holland, having had a similar motion overruled, thereupon took the stand in his own behalf and testified. At the conclusion of this defendant's testimony, the motion for a directed verdict in his behalf was renewed and was, by the court, overruled.

The plaintiff in error, Pikeville Fuel Company, here assigns only one error, 'The court erred in failing and refusing to direct a verdict in favor of the defendant Pikeville Fuel Company', which is supported by the various grounds which shall hereinafter be more particularly discussed. A similar assignment is filed by the plaintiff in error Logan Holland.

A motion to strike the assignment of error of Pikeville Fuel Company is made on behalf of Lee Marsh, the defendant-in-error. This motion is predicated upon the failure of said defendant to renew its motion for a directed verdict at the conclusion of all proof.

It is a well settled principle of law in this State that a defendant must renew his motion for a directed verdict at the conclusion of all evidence or his failure so to do constitutes a waiver. Gerber Co. v. Smith, 150 Tenn. 255, 263 S.W. 974; Nashville Ry. & Light Co. v. Henderson, 118 Tenn. 284, 99 S.W. 700. The rationale of the rule, as quoted in the latter case from Bogk v. Gassert, 149 U.S. 17, 13 S.Ct. 738, 37 L.Ed. 631, is stated thus: 'A defendant has an undoubted right to stand upon his motion for a non suit, and have his writ of error if it be refused; but he has no right to insist upon his exception after having subsequently put in his testimony and made his case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony. It not infrequently happens that the defendant himself by his own evidence supplies the missing link, and, if not, he may move to take the case from the jury upon the conclusion of the entire testimony.' In City of Knoxville v. Hargis, 184 Tenn. 262, 198 S.W.2d 555, 558, the court said: 'The statement of the Trial Judge, before submitting the case to the jury, that the City relies on its motion made at the end of the plaintiff's proof, put the City in exactly the same position it would have been in had it renewed its motion at the end of all the evidence, since it had introduced no evidence to effect a waiver of the former motion, and the evidence introduced by the Codefendant did not touch the question of the City's liability.' Now in the instant case, no statement was made at the conclusion of all evidence, either by the court or by the defendant, Pikeville Fuel Company, but it is important to note that, prior to the introduction of Logan Holland's testimony, the following colloquy transpired:

'Mr. Sizer: Your Honor, as far as the Pikeville Fuel Company is concerned, we stand on our motion.

'The Court: All right.

'Mr. Sizer: I understand, Your Honor, any other evidence offered is not binding on us, we are not offering any.

'Mr. Pope: What is it you said?

'Mr. Sizer: I say, the Pikeville Fuel Company is offering no evidence. We stand on our motion and any other evidence is on behalf of the plaintiff.

'Mr. Pope: That is all right, thank you.'

Now, as indicated by the court in City of Knoxville v. Hargis, supra, where evidence of a codefendant touches upon the question of another defendant's liability, which, in fact, it did in the present case, the court is entitled to consider it along with all other evidence. This is necessarily so, for otherwise, one defendant could rest his own case and get the benefit of the other's proof without any of the hazards attendant thereto. But this is not to say that a defendant is invariably bound by his codefendant's testimony. This would be equally unfair. In the instant case, the defendant Pikeville Fuel Company expressly disavowed any responsibility for such further evidence as might be adduced, as well as any implications, favorable or unfavorable which might derive therefrom. We think that it was clearly understood by both the Court and Counsel for the plaintiff, that this defendant intended that...