Reid v. Messer

• Decision Date: 15 November 1949
• Citation: 33 Tenn.App. 255,231 S.W.2d 400
• Parties: REID v. MESSER.
• Court: Tennessee Court of Appeals

Page 400

231 S.W.2d 400

33 Tenn.App. 255

REID v. MESSER.

Court of Appeals of Tennessee, Western Section.

Nov. 15, 1949 Certiorari Denied by Supreme Court April 29, 1950.

John W. Harris, Memphis, Armstrong, McCadden, Allen, Braden & Goodman, Memphis, for plaintiff in error.

Robert M. Nelson, W. Wright Mitchell, Don G. Owens, Jr., all of Memphis, for defendant in error.

ANDERSON, Presiding Judge.

Reid appealed from a judgment entered on a jury verdict awarding Messer damages arising out of an automobile collision for the death of his wife and serious personal injuries to himself.

The declaration alleges that about 11:00 o'clock p. m. on March 25, 1946, the defendant Reid loaned an automobile then in his custody to one Kaisi 'who at said time and place was not in a normal and reasonable mental condition, or was intoxicated and because of that condition was an unfit person to drive an automobile'; that said Reid 'knew or in the exercise of ordinary care should have known that said Robert Kaisi was not in a normal and reasonable mental condition, or was in an intoxicated condition and was unfit or incompetent to drive said automobile'; that a few minutes after the automobile had been turned over to him by the defendant, the said Kaisi, while driving west on U.S. Highway 70 into Memphis 'suddenly steered the aforesaid automobile across the center line of said highway * * * head on into an automobile being driven carefully and lawfully on the east of the highway by the plaintiff, Purvis Monroe Messer, and thereby directly and proximately caused the injuries to the plaintiff and the death of his wife and damage to his automobile.'

The defendant assigns error on the failure of the judge to sustain his motion for a directed verdict made at the conclusion of the plaintiff's proof. It is too well settled to require discussion that this motion was waived when, following the action thereon, the defendant offered evidence in his own behalf. Fulmer v. Jennings, 24 Tenn.App. 635, 148 S.W.2d 39; Duling v. Burnett, 22 Tenn.App. 522, 124 S.W.2d 294.

The defendant contends that the judge erred in failing to grant his motion for a directed verdict made at the close of all of the evidence because 'there was no evidence that the driver of the car was incompetent or that the defendant knew or should have known of any abnormal condition or incompetency of the driver, or that any possible neglect in lending the car was the proximate cause of the resulting accident.'

Both Kaisi and the defendant Reid were in the naval service and stationed at the Millington Naval Base, but at the time in question assigned to the First Aid Station in Memphis. They were friends. At the time of the accident, Reid was eighteen years of age. Kaisi was 20 and married.

On the evening of the accident, Kaisi though married was in search of entertainment which contemplated the presence of the opposite sex and the consumption of whiskey. About six p. m. he phoned the defendant Reid and told him of his desire and inquired as to whether Reid could obtain the use of his mother's car for the evening in order that they might take out on a party two waitresses who were employed at Brittling's Cafeteria. Reid was willing, and having obtained his mother's consent for the use of her car, met Kaisi and thereafter the two met the two waitresses and another girl at the cafeteria about 9 p. m. They and another of Kaisi's friends, Holcomb, took the third girl home. The remainder of the group then proceeded to a cafe on Madison Avenue near the Baptist Hospital and arrived there about 9:15. In the meantime they had bought a fifth of a gallon of whiskey. Holcomb opened the bottle while on the way to the cafe and had a drink while in the car. When they reached the cafe, the five of them had two drinks apiece from the bottle and they gave a couple of drinks to a waitress at the cafe. After about 15 minutes they left there and drove to another establishment named 'The Palms', on Highway 70. En route they dropped Holcomb at his home.

Kaisi had had one bottle of beer about 6 p. m., just before he telephoned the defendant Reid. He took two drinks of whiskey at the first stop on Madison Avenue. The party arrived at the Palms a little after 10 p. m. and each of the four had two more drinks, making four in all for the witness Kaisi, in addition to the bottle of beer. The whole party had some 21 drinks in the course of the evening. At about 11 p. m. it became apparent that the bottle of whiskey was about exhausted and Kaisi asked the defendant Reid to loan him his car in which to go to town to replenish the supply. The defendant at first demurred, but finally agreed and turned the car over to Kaisi, who thereupon left the Palms, accompanied by his girl friend. The car proceeded westward toward Memphis until the accident occurred, near Berclair, one mile east of the city limits.

The highway was of concrete, consisting of four lanes. It was straight and level in the vicinity of the accident. It was raining slightly and the pavement was wet but not slippery.

Messer was a foreman at the Buckeye Cotton Oil Mill. On the day of the accident, he got off from work at 11:00 p. m., his regular time, and was met at the gate of the mill by his wife, who was driving his automobile. He took over the wheel and after entering Highway 70 proceeded eastward toward his home near the junction of Highways 64 and 70.

As he neared Berclair he was driving in the south lane of the highway with his left wheels barely over the black line separating the south lane from the one immediately adjacent thereto on the north. He was following another automobile which was several car lengths ahead of his car. While proceeding in this manner, the automobile...