Southern Motors v. Morton

• Decision Date: 21 March 1941
• Citation: 154 S.W.2d 801
• Parties: SOUTHERN MOTORS Inc. v. MORTON.
• Court: Tennessee Supreme Court

Page 801

154 S.W.2d 801

SOUTHERN MOTORS Inc. v. MORTON.

Court of Appeals of Tennessee, Western Section.

March 21, 1941.

Petition for Certiorari Denied by Supreme Court June 28, 1941.

Appeal in Error from Circuit Court, Shelby County; Ben L. Capell, Judge.

Action by Katherine Morton against the Southern Motors, Inc., and another for personal injuries. Judgment for plaintiff, and named defendant appeals in error.

Action dismissed as to appellant.

Charles L. Neely, of Memphis, for plaintiff in error.

W. Wright Mitchell, of Memphis, for defendant in error.

ANDERSON, Judge.

This action was instituted by the original plaintiff, Katherine Morton, to recover damages for personal injuries sustained by her when the automobile in which she was riding as a guest was run into by another automobile owned by the defendant, Southern Motors Inc., and being driven at the time by one D. L. Cianciola, the latter also being named as a defendant. There was a verdict and judgment for the plaintiff against both defendants in the sum of $1,200. The defendant corporation alone appealed in error. It contends that, notwithstanding the conceded negligence of the driver of the car, there was no evidence to support the conclusion that at the time of the accident he sustained such a relationship to it as rendered it responsible for his conduct, and hence that its motion for a directed verdict should have been sustained.

The accident occurred on Sunday afternoon. As stated, the negligent driver, D. L. Cianciola, was operating a car belonging to the defendant corporation. His wife and other members of his family were also occupants of the car. The theory of the Motor Company's defense was that its car had been loaned to Cianciola for use by him on that particular day and that at the time the accident occurred he was using the loaned car on a mission that was exclusively his own.

The theory put forward by the plaintiff in support of her contention that the judgment should be affirmed is stated in the brief in this language:

"We submit that the preponderance and greater weight of the evidence clearly establishes the three vital points here upon which the jury were entitled to predicate their verdict in favor of the plaintiff against the Southern Motors Inc. These facts are namely:

"(1) That at the time and place of the accident, Mrs. D. L. Cianciolo alone was interested in buying the new automobile from the Southern Motors Inc., and not her husband, D. L. Cianciolo.

"(2) That the LaSalle automobile in which Cianciolo was riding his wife, the purchaser, Mrs. Cianciolo, at the time of the accident was not loaned to her but rather to him, D. L. Cianciolo, and

"(3) That the time of the accident, Mr. Cianciolo to whom the automobile was entrusted and loaned was demonstrating the automobile to his wife, the prospective purchaser, and that was the purpose of the loan to him — to act as an agent for the Southern Motors and demonstrate their automobile to one of their prospective purchasers."

Learned counsel for the plaintiff makes a very able and ingenious argument in support of his insistence that we ought to affirm the judgment. But this must not be done; for, even if it be assumed that any view of the plaintiff's theory as above set forth furnishes a legalistic basis for the verdict and the judgment, there is no material evidence to support the conclusion necessarily reached with respect to the essential facts bearing upon the crucial question of the relation of the negligent driver to the defendant.

We shall now undertake to give the considerations which have led us to this conclusion.

The plaintiff concedes that apart from the effect of the procedural statute hereinafter discussed the authorities are all against her and she should not have prevailed, if the only permissible conclusion was that Cianciola and not his wife was the purchaser or prospective purchaser of the new car; and hence, for the moment, we address ourselves primarily to that point as we proceed to examine the evidence. We do this in the light most favorable to the plaintiff as required by an elementary rule of practice governing the consideration of the question in hand.

The defendant is a corporation engaged in the sale of Cadillac and LaSalle automobiles. Cianciola was one of its customers, having bought several cars from it prior to the occasion here under consideration. For some time prior to February, 1939, Mr. Guerini, one of the defendant's salesmen, had been endeavoring to prevail upon Cianciola to buy a new car. On Sunday, February 26, 1939, Cianciola, accompanied by his wife, went to the defendant's place of business and selected the type of car desired. The defendant did not have in stock one of the color preferred by the wife. The trade was agreed upon, however, at that time, with the understanding that a car of the type and color desired would be ordered and delivered at a later date. The agreement was reduced to writing in the form of an order signed by Cianciola but not by his wife. Cianciola's old car was taken in at an agreed figure and that amount was allowed as a credit on the purchase price of the new one.

At the same time the salesman let Cianciola have one of the company's cars to use on that day with the understanding that it was to be returned on the following morning. As already said, the accident occurred on that afternoon while Cianciola was driving his family in the defendant's car.

We should say just here that it also seems to be a theory of the plaintiff that even if the purchase price had been agreed upon before the accident, that nevertheless, in order to forestall a rescission of the trade or at least an attempt to rescind, and to insure acceptance of the purchased car upon its arrival, it was necessary to demonstrate to the satisfaction of Mrs. Cianciola the operating qualities of the type of car that had been selected, and that Cianciola acting for the defendant dealer was engaged in this undertaking at the time the accident happened.

The plaintiff relies chiefly upon the testimony of Cianciola to support her contentions and it is quite evident that even though a defendant he did not view with alarm the menace of plaintiff's action and in fact was seemingly not at all averse to the way the case went. In this connection it is worthwhile to note that he filed separate pleas to the declaration and was represented by separate counsel throughout the trial. We have concluded that his testimony upon the determinative question does not arise to the dignity of evidence, and this we shall now demonstrate.

On direct examination by his own counsel he testified that after they went to the defendant's place of business his wife "picked out the car she thought she liked and they didn't have the right kind she wanted. But she signed up for a car all right."

(The evidence shows that she did not sign anything. Upon the other hand, all of the signing that was done was done by Cianciola alone and this is conceded.)

He also testified on direct examination that the defendant's salesman, referring to one of the defendant's cars, asked him to "drive it out and see how I like it", and "to bring it back the next morning."

Asked, "Why did he want you to take that car he loaned you?" Cianciola responded, "To see how I liked it, and how much gas it used and to see if I am satisfied with it."

On cross-examination by the Motor Company's counsel, Cianciola was interrogated with respect to his testimony on a former trial. He admitted having testified that it was he who bought the new car; that "I signed up that same morning"; that after the purchase had been completed the dealer, not having in stock one of the desired color, had let him have a car of the same type as that purchased to drive "on that Sunday afternoon to see how I liked it", with the understanding that he was to return it the following morning.

He then said that the foregoing version of the facts given by him on the former trial was correct.

When he was turned over to the plaintiff's counsel for cross-examination, he testified easily and without equivocation that it was his wife, not he, who was the prospective purchaser and who in fact bought the new car. He was emphatic on that point, although when asked, "She was the one who owned the old car you left at that place?", referring to the one that was traded in, his response was, "I couldn't answer that. I am not sure."

He was also asked, "She had signed up for the new car?" referring to his wife. His response was, "Yes", whereas, as already stated, she in fact signed nothing then and signed nothing thereafter. He further testified that the dealer's car was turned over to him in order that he might demonstrate it to his wife on that Sunday afternoon, evidently meaning that this was to be done with a view of satisfying her as to the advisability of its purchase.

We may observe incidentally that it developed that Mrs. Cianciola had no resources whatever with which to pay for an automobile; nor did she testify in the case, it appearing that she had been advised by her physician "not to be in Court".

There was introduced in evidence the written order for the new car. This is dated as of the day the sale was made and describes the buyer as being "D. L. Cianciola" and is signed by him alone. When the new car arrived on or about March 20, 1939, a conditional sales contract was entered into, which is in the record. This describes the purchaser as "Dominick Cianciola" and is signed by him in that capacity and by the defendant Motor Company in the capacity of seller. There is no reference to Mrs. Cianciola in this instrument; and there was no denial by Cianciola that he executed it.

Without further specific reference thereto it is clear to us that at one stage of his examination the tenor and effect of Cianciola's testimony was that his wife, and not he was the purchaser or prospective purchaser of the car who had to be satisfied by a...