Schoenly v. Nashville Speedways, Inc.

• Decision Date: 10 March 1961
• Citation: 12 McCanless 107,344 S.W.2d 349,208 Tenn. 107
• Court: Tennessee Supreme Court
• Parties: , 208 Tenn. 107 Paul T. SCHOENLY v. NASHVILLE SPEEDWAYS, INC., et al.

Page 349

344 S.W.2d 349

12 McCanless 107, 208 Tenn. 107

Paul T. SCHOENLY v. NASHVILLE SPEEDWAYS, INC., et al.

Supreme Court of Tennessee.

March 10, 1961.

Gracey, Buck, Maddin & Cowan, Nashville, for plaintiff in error.

T. T. McCarley, Nashville, for defendants in error.

FELTS, Justice.

This action was brought by Paul T. Schoenly against Nashville Speedways, Inc., and McDowell & McDowell, to recover damages for personal injuries alleged to have been caused plaintiff by the concurrent negligence of defendants and of State Highway Patrolman Charles E. Graham, in particulars hereinafter set out.

Defendants each filed a special plea of discharge or accord and satisfaction and of judicial estoppel against the right of plaintiff to maintain this suit, because the Board of Claims had awarded him compensation for his injuries in the sum of $5,000, which had been paid to him.

Plaintiff demurred to these special pleas and had the case set down for hearing on the demurrers and pleas. The Trial Judge, in a written opinion made a part of the record, overruled the demurrers, sustained the special pleas, and dismissed this action. Plaintiff appealed in error and has assigned errors.

The facts disclosed by plaintiff's declaration, and by the special pleas admitted to be true by the demurrers, were in substance as follows:

Defendant Nashville Speedways, Inc., was having constructed an oval asphalt race track at the fairgrounds. Defendant McDowell & McDowell were the contractors doing the construction work, which had not been finished but was unfit and dangerous to be used by vehicles. On the outside of the race track was a guardrail, and located two or three feet outside the guardrail were sign boards or billboards, which plaintiff's employer, Greer Sign Company, had contracted to paint.

Plaintiff was standing on a scaffold painting the billboards; and, notwithstanding that defendants knew of the unfinished and dangerous condition of the race track, they allowed and invited State Highway Patrolmen on motorcycles to come upon said track and to ride the motorcycles around said oval track.

While plaintiff was standing on the scaffold as aforesaid, one of said patrolmen, Charles E. Graham, while riding his motorcycle, approached and entered the south turn 'traveling at an exceedingly high and dangerous rate of speed,' was 'unable to negotiate or complete said south turn,' 'ran off the asphalt track, into and through the guardrail and under and into the ladders and scaffolding' on which plaintiff was standing, thereby throwing him violently to the ground and causing the injuries sued for.

In addition to the dangerous and unfinished condition of the race track, defendants made it still more dangerous by leaving 'materials such as posts or concrete blocks on the asphalt surface of said race track'; and such dangerous condition of the track, and such concrete blocks and posts caused said Graham, riding his motorcycle, to run into such blocks and posts, 'thereby throwing the motorcycle completely out of control and running into the scaffolding.'

The facts alleged by the special pleas were that plaintiff, before bringing the present suit, had filed a claim against the State before the Board of Claims, seeking compensation for the same injuries as those here sued for. In a sworn petition, he stated that 'his injuries were all due to the negligence of the State's employee, Charles E. Graham, while said employee was on the business of the State.' He also averred in his brief before the Board that 'the sole procuring cause of the injuries' to him was the 'negligence on the part of Lt. Charles Graham.'

It further appears that the Board of Claims allowed his claim and awarded him compensation for his injuries in the sum of $3,500 originally; but upon his exception, the Board increased his compensation to $5,000, which was paid to him, on the theory that the State of Tennessee, by act of its servant, was a joint tort-feasor and liable for plaintiff's injuries.

1. Plaintiff submits that in committing the tort sued for, the State employee Graham, and the defendants, Nashville Speedways, Inc., and McDowell & McDowell, were acting not in concert, but individually; that their independent acts, though together causing his injuries, did not constitute a joint tort; and that plaintiff had a right to sue any or all of them; and that a judgment and satisfaction against one of them would not discharge the others.

As we have seen, the negligence charged against defendants was that they invited State employee Graham to ride his motorcycle on the race track while it was unfit and dangerous for such use; and the negligence charged against State employee Graham was that, while riding his motorcycle on the dangerous track at 'an exceedingly high and dangerous rate of speed,' he ran it off the track and into the scaffold, causing plaintiff's injuries.

That is, the negligence of defendants and the negligence of Graham were continuous and concurrent up to the moment of the injury, and both together caused the harm or injury to plaintiff's body which was one single harm or injury, incapable of any logical division or apportionment.

One of our leading cases on the question of joint and several liability for tortious acts is the case of Swain v. Tennessee Copper Co., 111 Tenn. 430, 78 S.W. 93, 94. There, two different companies, acting separately, each committed a nuisance by emitting immense volumes of poisonous smoking gases upon plaintiff's land....