Sullivan v. Herbert

• Decision Date: 07 September 1971
• Citation: Sullivan v. Herbert, 225 Tenn. 564, 473 S.W.2d 453, 3 Pack 564 (Tenn. 1971)
• Parties: , 225 Tenn. 564 Suzanna SULLIVAN, b/n/f, Appellant, v. Robert D. HERBERT et al., Appellees. Marge SULLIVAN, Appellant, v. Robert D. HERBERT et al., Appellees. Peter SULLIVAN, Appellant, v. Robert D. HERBERT et al., Appellees.
• Court: Tennessee Supreme Court

Page 453

473 S.W.2d 453

3 Pack 564, 225 Tenn. 564

Suzanna SULLIVAN, b/n/f, Appellant, v.Robert D. HERBERT et al., Appellees.

Marge SULLIVAN, Appellant, v.Robert D. HERBERT et al., Appellees.

Peter SULLIVAN, Appellant, v.Robert D. HERBERT et al., Appellees.

Supreme Court of Tennessee.

Sept. 7, 1971.

On Rehearing Nov. 15, 1971.

John K. Maddin, Jr., Gracey, Buck, Maddin & Cowan, Nashville, for appellants.

Howard Bridges, Dept. of Law, Metropolitan Government, Nashville, for appellees.

OPINION

HUMPHREYS, Justice.

The Sullivans sued Robert D. Herbert and Metropolitan Government for damages growing out of an automobile accident at the intersection of Cantrell Avenue with Westmont Avenue in Davidson County, Tennessee.The trial judge sustained Metropolitan Government's demurrers, the Sullivans nonsuited Herbert, and appealed to this Court.

The declarations alleged that Marge Sullivan, with her minor child, Suzanna Sullivan, riding with her as a passenger, drove her automobile northward on Cantrell Avenue into the intersection of Cantrell Avenue with Westmont Avenue where it was struck by Herbert's automobile, which was going westward at the time on Westmont.It is alleged that vandals had removed a traffic sign requiring motorists entering into the Westmont intersection as the Sullivans did to stop before doing so.And that the absence of the sign made the intersection dangerous.The declarations charged that, under all the facts and circumstances Metropolitan Government was guilty of negligence and of committing a nuisance.This fault was spelled out in the declarations as follows:

'1.Plaintiff here and now adopts and incorporates by reference all allegations of the First Count hereof and, in addition thereto, alleges that Cantrell Avenue and Westmont Avenue at all times mentioned herein were public highways within the corporate limits of the defendant Metropolitan Government and were on rights of way owned by said defendant in its proprietary capacity and it was the duty of said defendant to maintain said highways and the intersection of said highways in good repair and safe condition and to maintain adequate traffic signs at said intersection.Prior to August 29, 1969, said defendant had placed and maintained for many years a stop sign on the rights of way owned by it for said highways near the southeast corner of said intersection which displaced the word 'stop', facing to the south toward traffic on Cantrell Avenue approaching said intersection from the south, so as to warn such traffic to stop before entering said intersection.On August 29, 1969, said stop sign was removed and agents and officials of said defendant were given notice that said stop sign had been removed.

'2.The defendant Metropolitan Government was negligent in that it failed to replace said stop sign after receiving notice that it had been removed and in that it allowed said intersection to be and remain in an extremely dangerous and defective condition without said stop sign.

'3.As a direct and proximate result of said negligence of the defendant Metropolitan Government, concurring with the negligence of the defendant Herbert as alleged in the First Count, plaintiff suffered the damages, injuries and losses set out in the First Count hereof, to which reference is here made.'Tr.p. 4--5

By amendment to the fifth count it is charged that the procedure for replacement of stop signs followed by Metropolitan Government results in many days' delay between notice and replacement and that this amounts to negligence resulting in a dangerous and hazardous condition.

By another count, making the same allegations, it is charged that the failure to maintain the stop sign at this intersection constituted a nuisance.

The trial judge sustained Metropolitan Government's demurrer based on governmental immunity, and the Sullivans have appealed.While the trial court was likely correct under Powell v. City of Nashville, 167 Tenn. 334, 69 S.W.2d 894, we do not reach that question, because of a fatal defect in the declarations of which we must take notice: the failure to allege facts which if proved would show the absence of the stop sign to be the proximate cause of the collision.

Reduced to their essentials, that is to their facts, the declarations allege that for some time prior to the accident there had been a stop sign at the intersection but that on the day of the accident there was no stop sign at the intersection.Insofar as the Sullivans might be affected thereby these are all the facts alleged.

It is true that the declarations allege that Metropolitan Government was negligent in failing to replace the stop sign after notice of its removal; and thereby also committed a nuisance.And it is true the declarations allege that Metropolitan Government allowed the intersection to be and remain 'in an extremely dangerous and defective condition without said stop sign.'But it must be conceded that these allegations of negligence and nuisance and dangerous and defective condition are simply conclusions.And it must also be conceded that conclusions of a pleader amount to nothing; not even being necessary to proper pleading.Cotton Oil Co. v. Shamblin, 101 Tenn. 263, 47 S.W. 496;...