V.L. Nicholson Const. Co. v. Lane

• Decision Date: 17 May 1941
• Citation: 150 S.W.2d 1069,177 Tenn. 440
• Parties: V. L. NICHOLSON CONST. CO. et al. v. LANE.
• Court: Tennessee Supreme Court

150 S.W.2d 1069

177 Tenn. 440

V. L. NICHOLSON CONST. CO. et al. v. LANE.

Supreme Court of Tennessee.

May 17, 1941

Error to Circuit Court, Knox County; Hamilton S. Burnett, Judge sitting by interchange.

Action by Leroy Lane against V. L. Nicholson Construction Company and another for personal injuries sustained by plaintiff when struck by an automobile belonging to named defendant and operated by its employee.To review a judgment of the Court of Appeals, affirming a judgment for plaintiff, the defendantpetitions for a writ of certiorari.

Petition for writ of certiorari denied.

Poore Kramer & Cox and Chas. F. Pettway, all of Knoxville, for plaintiff in error.

Hartman Lockwood & Carson, of Knoxville, for defendant in error.

GREEN Chief Justice.

This suit was brought to recover damages for personal injuries sustained by the plaintiff when he was run down by an automobile belonging to defendantConstruction Company and operated by co-defendant Johnson, an employee of the Construction Company.There was a verdict and judgment for $1,350, which was affirmed by the Court of Appeals.

Johnson was employed by the Construction Company as janitor at its place of business in Knoxville and also drove a truck operated by it when so instructed.On the night of the accident he drove one Merrill, a sort of superintendent or superior employee of the Construction Company, to the latter's home in the company's truck.They reached the Merrill place about five-thirty and Merrill got out and directed Johnson to take the truck back to the company's garage.Merrill lived some three miles from the place of business of the Construction Company and about twenty or twenty-five minutes were required to make the trip from one place to the other.

Apparently Johnson did not go back to the Construction Company's garage.If so, he did not remain there.He returned to the city, got drunk, and about 9 o'clock, driving the truck, he ran into and damaged a vehicle parked on the side of the street, and then ran over the plaintiff and knocked the latter down at a street crossing.

There is abundant evidence that Johnson operated the truck negligently and that he was drunk.The question of plaintiff's contributory negligence was submitted to the jury and resolved in his favor.

The proof shows very clearly that Johnson was addicted to drink.The superintendent, Merrill, above mentioned, testified that Johnson would get drunk at night and was repeatedly late for work the next morning.Merrill himself had twice reprimanded Johnson about his habits.

There is proof in the record that Nicholson himself, the head of the company, investigating the accidents, admitted that Johnson had given him trouble about his drinking, that he had put up with him as long as he could, and would then discharge him.

There is no question, therefore,...