Schenk v. Gwaltney

• Decision Date: 25 July 1957
• Citation: 309 S.W.2d 424,43 Tenn.App. 459
• Parties: Joe SCHENK, Adm'r of the Estate of Henry Hollingsworth, Deceased, Plaintiff in Error, v. Paul GWALTNEY, Defendant in Error. Joe SCHENK, Adm'r of the Estate of Henry Hollingsworth, Deceased, Plaintiff in Error, v. Leborn HOLLINGSWORTH, Adm'r of the Estate of J. C. Hollingsworth, Deceased, Defendant in Error. Joe SCHENK, Adm'r of the Estate of Henry Hollingsworth, Deceased, Plaintiff in Error, v. Evelyn W. KING, Adm'x of the Estate of J. C. King, Jr., Deceased, Defendant in Error.
• Court: Tennessee Court of Appeals

Page 424

309 S.W.2d 424

43 Tenn.App. 459

Joe SCHENK, Adm'r of the Estate of Henry Hollingsworth, Deceased, Plaintiff in Error, v. Paul GWALTNEY, Defendant in Error.

Joe SCHENK, Adm'r of the Estate of Henry Hollingsworth, Deceased, Plaintiff in Error, v. Leborn HOLLINGSWORTH, Adm'r of the Estate of J. C.

Hollingsworth, Deceased, Defendant in Error.

Joe SCHENK, Adm'r of the Estate of Henry Hollingsworth, Deceased, Plaintiff in Error, v. Evelyn W. KING, Adm'x of the Estate of J. C. King, Jr., Deceased, Defendant in Error.

Court of Appeals of Tennessee, Western Section.

July 25, 1957 Certiorari Denied by Supreme Court Oct. 4, 1957.

James S. Wilkes, Dyersburg, and John L. West, Ridgely, for plaintiff in error Joe Schenk, Adm'r of the estate of Henry Hollingsworth, deceased.

Miles & Miles, Union City, and Fred Roberson, Tiptonville, and E. T. Palmer, Dyersburg, for defendants in error Paul Gwaltney and Leborn Hollingsworth, Adm'r of the Estate of J. C. Hollingsworth.

R. D. Fry and Heathcock, Elam & Cloys, Union City, for defendant in error Evelyn W. King, Adm'x of the estate of J. C. King, Jr.

CARNEY, Judge.

These three lawsuits were tried jointly to a jury in Lake County, Tennessee. The jury found in favor of the plaintiff in each of the three cases. Judgments were entered against the defendant, Joe Schenk, adm'r of Henry Hollingsworth, in favor of the plaintiffs as follows: Paul Gwaltney, a minor aged 19, $12,500; Leborn Hollingsworth, adm'r of the estate of J. C. Hollingsworth, $15,000; Evelyn W. King, adm'x of the estate of J. C. King, Jr., $15,000.

The defendant below, Joe Schenk, adm'r of the estate of Henry Hollingsworth, has appealed in error from each of said three judgments.

Before the cases were argued upon the merits in this court the defendants in error filed a motion in this court to strike the bill of exceptions and dismiss the appeals on the grounds that the bill of exceptions was not filed within the time allowed by law and as fixed by the trial court.

Upon a review of the record as filed in this court it appeared that the orders overruling the motions for new trials, though approved by all of the attorneys of record and though filed with the clerk of the court, had never been signed by the Trial Judge nor had they been entered upon the minutes of the court.

It was the opinion of this court that we did not have jurisdiction to consider the appeals since the record did not show that the order of the Trial Judge overruling said motions and granting the appeals in error had been entered upon the minutes of the court. Dalton v. Dean, 22 Tenn.App. 56, 117 S.W.2d 973; Higgins-Crownover Tennessee Procedure, Sections 1826, 1827, 1885; Payne v. Eureka-Security Fire & Marine Insurance Co., 173 Tenn. 659, 122 S.W.2d 431; Cochran v. National Life & Accident Insurance Co., 167 Tenn. 95, 66 S.W.2d 996; Life & Casualty Ins. Co. v. Baber, 166 Tenn. 10, 57 S.W.2d 791; Standard Oil Co. v. Naramore, 30 Tenn.App. 430, 207 S.W.2d 7.

A per curiam opinion of this court was filed on January 30, 1957, authorizing a judgment to be entered remanding the cases to the court below together with a copy of said per curiam opinion in order that the record might be properly prepared to give this court jurisdiction of the appeals. This was under the authority of T.C.A. § 27-329.

Upon a remand of said cases the orders overruling the motions for new trial were each signed by His Honor, the Trial Judge, and entered upon the minutes of the court. The transcript of the record has been corrected accordingly and returned to this court. We now have jurisdiction to consider the appeals.

Inasmuch as the bill of exceptions properly authenticated by the Trial Judge was on file with the clerk of the court at the time the orders overruling the motions for new trial were signed by the Trial Judge and entered upon the minutes of the court pursuant to the judgment of this court of date January 30, 1957, the bill of exceptions is not subject to the objection that it was filed too late. In the oral argument of these causes upon the merits attorneys for the defendants in error withdrew their motion to strike the bill of exceptions and we now have the causes for determination upon the assignments of error filed by the plaintiff in error, Joe Schenk, administrator.

The suits arose out of an automobile accident which happened on September 29, 1955, south of Indianapolis, near the town of Gosport, Indiana.

Henry Hollingsworth, aged 56, his son, J. C. Hollingsworth, aged 35 and J. C. King, Jr., aged 43, were residents of Lake County, Tennessee. Paul Gwaltney, aged 19, is a resident of Obion, Obion County, Tennessee.

All four of these men had been working in Ypsilanti, Michigan, and at the time of the tragedy, they were on the way home to Tennessee for a vacation. They were travelling in a 1954 Pontiac automobile owned by Mr. Henry Hollingsworth.

They had left Michigan about 2:00 A.M. on the morning of September 29, 1955. The parties had agreed to share the expenses of gas, oil and meals on the trip. J. C. Hollingsworth, the son, had driven the automobile on the first lap of the trip.

Sometime about daylight, they had a puncture and when they resumed travelling, the owner, Mr. Henry Hollingsworth, took the wheel. It was planned that later on Mr. J. C. King would also drive a part of the way. Since Paul Gwaltney was only 18 years of age at the time, it was not contemplated that he would drive any of the way.

The accident happened on Highway 67 south of Indianapolis about 9:45 A.M. Paul Gwaltney was riding and dozing on the back seat of the automobile. The three others were on the front seat. No one saw the accident. No one knows for a certainty who was driving the automobile at the time of the accident. The evidence showed that the automobile left the west or southbound lane of traffic and ran into the north end of a concrete bridge on the east or left side of the road; then the automobile came to rest crossways of the road in front of the entrance to said bridge.

The plaintiff, Paul Gwaltney, the only survivor, who was asleep on the back seat of the car at the time, was thrown out of the car and into a ditch beside the bridge.

Two of the others were killed instantly. Mr. King died in a Martinsville, Indiana hospital without ever regaining consciousness.

All of the parties were thrown clear of the automobile by the impact. The front end of the car was smashed in and the concrete banister on the side of the bridge was broken into a panel of about three feet by the force of the impact from the automobile.

The highway was slick from the rain which had been falling and which was falling at the time of the accident. Some three hundred feet north of the bridge was a highway sign which read 'Slippery when Wet.' This sign was erected to warn traffic coming from the north on Highway 67 as they approached the concrete bridge of the dangerous condition of the highway when it was wet as on the day in question. The sign was on the highway and was passed by the occupants of the Pontiac automobile on the day of the fatal wreck.

Trooper N. K. Malone of the Indiana State Police testified that on the day of the wreck he was travelling south on Highway No. 67 and that he noticed the Pontiac trailing him on said highway for a distance of about three miles. He thought the four occupants were divided--two on the front seat and two on the back. He noticed through his rear view mirror the Pontiac trailing him and estimated he was then travelling about fifty-five to sixty miles per hour. The driver of the Pontiac did not seek to go around him but he did notice that it seemed to be following his car a little too closely.

Paul Gwaltney, who was on the back seat of the Pontiac, corroborates this testimony of Trooper Malone to the extent that Gwaltney roused sufficiently to notice a State Police car in front of the Hollingsworth car prior to the accident. At that time Mr. Henry Hollingsworth was driving his own automobile. Gwaltney went back to sleep and knows nothing further about the wreck until after the car had hit the bridge and the occupants thrown out of the car. The rain falling in Gwaltney's face brought him to consciousness and he remembers being put in an ambulance.

Trooper Malone further testified that he turned off Highway 67 at a point twelve to fifteen miles north of the scene of the accident; that he drove about one mile and stopped at a filling station, drank a soft drink, drove on further in his patrol car when his radio told him about a wreck near Gosport on Highway 67. He estimates that only about ten minutes elapsed from the time he turned off Highway 67 in front of the Pontiac until he learned by radio of the wreck of an automobile on the bridge near Gosport. Trooper Malone estimated the distance of twelve miles from a road map and estimated the time of ten minutes from memory.

Trooper Malone then drove to the scene of the wreck near the bridge and found the Pontiac automobile which had been trailing him just a short while before. One ambulance had already been to the scene and left with one or more of the occupants. Two of the occupants were lying on the pavement near the wrecked Pontiac. He identified these men as Hr. Henry Hollingsworth and his son, J. C. Hollingsworth. They were both dead. The legal speed limit on the highway at the point of the collision was sixty-five miles per hour.

The only witnesses for plaintiffs who gave any evidence relating to circumstances surrounding the accident were Trooper Malone and plaintiff, Paul Gwaltney. The evidence of other witnesses for the plaintiff related to nature of injuries, earning capacity, next of kin, dependents, etc. and shed no light on the nature or cause of the accident.

The defendant administrator of Henry Hollingsworth introduced in evidence only a deposition given by Charles F. Douglas, Sheriff of Owen County, Indiana. Sheriff Douglas was on his way to...