Sadler v. Draper

• Decision Date: 12 January 1959
• Citation: 326 S.W.2d 148,46 Tenn.App. 1
• Parties: Marie J. SADLER, Administratrix, v. Paul DRAPER.
• Court: Tennessee Court of Appeals

Page 148

326 S.W.2d 148

46 Tenn.App. 1

Marie J. SADLER, Administratrix, v. Paul DRAPER.

Court of Appeals of Tennessee, Middle Section.

Jan. 12, 1959.

Rehearing Denied March 27, 1959.

Certiorari Denied by Supreme Court July 27, 1959.

Goodpasture, Carpenter, Dale & Woods and Wirt Courtney, Jr., Nashville, for Marie J. Sadler, Admx.

Martin & Cochran, Carmack Cochran, John D. Whalley, and Joseph Martin, Jr., Nashville, for Paul Draper.

FELTS, Judge.

This was an action brought by Paul Draper for damages for personal injuries sustained from being struck by a Ford automobile, owned by E. B. Sadler, in charge of his employee Charles Foxall, and driven by Malcolm Crenshaw. Suit was brought against all three of them, Sadler died, and the case was revived against his administratrix, Mrs. Marie J. Sadler. ¹

Sadler, doing business as Sadler Motor Company, was operating in east Nashville a used car lot, or an open lot where he kept and dealt in used cars. Foxall and Crenshaw, colored men, lived in the neighborhood of this lot, and Foxall was regularly employed there by Sadler as a porter and to wash and take care of the cars, and was permitted to use first one and then another of them to go back and forth from his home to work.

Sadler acquired this Ford car in a trade with one Gregory on December 30, 1950, and the registration of it had not been changed to Sadler's name when the accident happened. The car's locks were out of order, neither its doors nor ignition could be locked, and it could be taken by anyone from the lot. To guard it against theft, Foxall took charge of it, drove it to his home that night (Dec. 30), and kept it in his control until he let Crenshaw have it.

The accident happened about 6:30 P.M. January 1, 1951. Plaintiff Draper had parked his car in front of his drug store on the south side of Woodland Street. He had put some ice cream and Coca Colas in the trunk of his car, and was closing it, standing behind the car, when this Ford car, driven eastward on Woodland Street by Crenshaw, drunk and asleep, swerved to the side, struck plaintiff and his car, and crushed his body between the two cars.

He charged in his declaration that his injuries were caused by the combined negligence of all the defendants; and, by several counts, sued Sadler as master for the negligence of his servant Foxall in entrusting the car to Crenshaw, knowing he was unfit, reckless, an habitual drunkard, and without driver's license; and for the negligence of Sadler, or of his agent, in entrusting the car to Foxall, knowing he was likewise unfit and associated with others of like character, and that the car, in his or their hands, would endanger others on the highway.

Crenshaw made no defense. Foxall and Mrs. Sadler, represented by the same counsel, filed a joint plea of not guilty, and also separate pleas, in response to the Trial Court's order, upon plaintiff's motion, requiring defendants to plead their defenses specially, under our statute (T.C.A. § 20-921).

There was a verdict and judgment for plaintiff against all the defendants for $85,000. Crenshaw and Foxall acquiesced, neither sought a review of the judgment; and Mrs. Sadler alone appealed in error, and has assigned errors. She first insists that the Trial Judge should have directed a verdict for her at the close of plaintiff's proof, and also at the close of all the proof, because there was no evidence to charge Sadler as master for the wrong sued for.

In reply, Draper contends that Mrs. Sadler cannot maintain this insistence, (1) because she waived her motion for a directed verdict made at the close of plaintiff's proof, by adducing evidence, ostensibly only for Foxall's, but really for her own, defense, and did not renew her motion at the end of all the proof; and (2) because there is ample evidence to charge Sadler as master and to support the verdict against his administratrix, Mrs. Sadler.

We think this contention must be sustained. The bill of exceptions shows that Mrs. Sadler and Foxall each moved for a directed verdict at the close of plaintiff's proof. After hearing arguments, the Trial Judge overruled these motions. Thereupon, counsel for Mrs. Sadler and Foxall stated that she rested and he would introduce evidence in behalf of himself only; and upon calling the first witness counsel said:

'Mr. Carpenter: If your Honor please, I offer this witness and all others in behalf of Charles Foxall only.'

Counsel then called, as witnesses, Sadler's brother and employee (Earl Sadler), the manager of his used car lot (Jerry Jones), his employee defendant Foxall, and others. Their effort was to disprove both the master-servant relation and the negligence alleged, and thus to discharge both Foxall and Mrs. Sadler; for where, as here, one is sued as master for the wrong of another as his servant, a discharge of the servant necessarily discharges the master. Loveman Co. v. Bayless, 128 Tenn. 307, 315, 160 S.W. 841.

When these witnesses were cross-examined to bring out evidence of the master-servant relation between Sadler and Foxall, Mrs. Sadler objected that she had rested, the case had been closed as to her, and she could not be affected by such evidence; and she now assigns error upon the admission of evidence, so elicited from Foxall, that Sadler furnished him an automobile as part of his contract of employment, and that he took charge of this Ford car for Sadler to guard it against theft. This assignment (No. II) is later referred to.

At the close of all the evidence, counsel renewed Foxall's motion, but not Mrs. Sadler's motion, for a directed verdict. The bill of exceptions shows that at the close of the cause the following occurred:

'Mr. Carpenter: If your Honor please, I have a matter to take up in the absence of the jury.

(Jury retires.)

Motion

'If it please the Court, at the conclusion of the Plaintiff's proof, we made a motion to have Mrs. Farmer [Mrs. Sadler]--which your Honor overruled--which we relied upon in which we stated we would introduce no proof on her behalf and that the only proof that would be introduced would be on behalf of the Defendant Foxall.

'We now, if your Honor please, renew our motion on behalf of the Defendant Foxall for a directed verdict in this cause, there being no evidence or any inference of evidence considered in its strongest light available to the Plaintiff * * * and a verdict be returned in favor of the Plaintiff [defendant] against the Defendant [plaintiff]. If your Honor please, I don't know as I need to argue that situation. It was argued fully in reference to Foxall at the conclusion of the proof. He was not driving. The car was not on his mission. It is shown here that Foxall was a man that did his job----

Argument Continued----

'* * * so we insist upon our motion as to the Defendant Foxall at this time.' (Italics ours.)

It appears learned counsel for Mrs. Sadler intended not to renew her motion but to rely on the one that had been made for her and overruled at the close of plaintiff's proof, and thereby avoid any adverse evidence adduced by Foxall. Apparently, it was their view that the defense, which they were managing for both Mrs. Sadler and Foxall, could be divided, and the case tried as to her as it stood at the close of plaintiff's proof and as to him as it stood at the end of all the proof, and thus give her, without any risk, a chance to succeed by the defense made for him.

We think this is a mistaken view of the rights of defendants under motions for directed verdicts. While no case has been cited to us, and we have been unable to find any, in this State dealing with the exact situation here presented, we think the applicable principle is clear and well settled, as will appear from a consideration of the rules governing direction of verdicts.

A motion for a directed verdict, like a demurrer to the evidence, is a common law device for separating law from fact, in order to test the legal sufficiency of the facts in evidence; and the rules governing the two procedures, while different, are analogous in many respects. See Thayer's Preliminary Treatise on Evidence, (1898) 234-240; Hopkins v. Nashville, C. & St. L. R., 96 Tenn. 409, 422, 447-458, 34 S.W. 1029, 32 L.R.A. 354; Sands v. Southern R. Co., 108 Tenn. 1, 6, 64 S.W. 478; Coleman v. Bennett, 111 Tenn. 705, 710, 69 S.W. 734.

One of such analogies is that the defendant had to demur at the close of plaintiff's proof and not later, and had to set forth in writing and admit all the facts which plaintiff's evidence tended to prove, with every reasonable inference therefrom; while the defendant may move for a directed verdict at the close of plaintiff's proof but cannot claim such a ruling, as a matter of right, without then resting his own case. At that point his motion merely invokes the Trial Judge's discretion, and not until all the evidence is closed may he demand a ruling as of right.

This common law rule of practice was well stated by Mr. Justice Gray in Columbia & Puget Sound R. Co. v. Hawthorne, 1892, 144 U.S. 202, 206, 12 S.Ct. 591, 592, 36 L.Ed. 405, 406, as follows:

'It has repeatedly been decided that a request for a ruling that upon the evidence introduced the plaintiff is not entitled to recover cannot be made by the defendant, as a matter of right, unless at the close of the whole evidence; and that if the defendant, at the close of the plaintiff's evidence, and without resting his own case, requests and is refused such a ruling, the refusal cannot be assigned for error.'

Professor Wigmore has fully discussed the practice of directing verdicts at common law and has correctly stated it in the form of these three rules (9 Wigmore on Evidence [3rd Ed. 1940], section 2496, pp. 313-315):

'(1) In the first place, the opponent cannot claim a ruling by the judge, as a matter of right, if he makes the motion at the close of the proponent's case in chief without then resting his own case. At that point, he is only invoking the Court...