Wheeler v. Cain
| Decision Date | 04 February 1970 |
| Citation | 62 Tenn.App. 126,459 S.W.2d 618 |
| Parties | Gerald WHEELER, By Mother and Next Friend, Nettie Wheeler, Plaintiff-Appellee, v. Sara CAIN and Howard Cain, Defendants-Appellants. Dan WHEELER and Nettie Wheeler, Plaintiffs-Appellees, v. Sara CAIN and Howard Cain, Defendants-Appellants. |
| Court | Tennessee Court of Appeals |
Leo Bearman, Jr., Leo Bearman, Sr., Memphis, for defendants-appellants.
Max D. Lucas, Jr., J. W. Kirkpatrick, Kirkpatrick & Lucas, Memphis, for plaintiffs-appellees.
The two cases were tried together below before the Trial Judge sitting without a jury. The Trial Judge awarded the minor plaintiff, Gerald Wheeler, age 17, compensatory damages of $25,000 and punitive damages of $2,500. He awarded the parents, Dan and Nettie Wheeler, $1,200 for loss of services, medical expenses, etc. On motions for new trials the Trial Judge remitted his verdict from $25,000 to $20,000 for compensatory damages and overruled all other grounds of the motions for new trials.
The defendants, Sara Cain and Howard Cain, have appealed from the judgments against them. The plaintiff, Gerald Wheeler, by mother and next friend, Nettie Wheeler, has appealed from the action of the Trial Judge in granting the remittitur of $5,000.
The plaintiff, Gerald Wheeler, was severely injured on the night of July 14, 1967, when he was struck by an automobile at the corner of Josephine and Carnes Streets in Memphis, Tennessee. The defendant, Mrs. Sara Cain, was employed as a hostess for Continental Bread Company. On the afternoon of July 13, 1967, she attended a food show for Malone & Hyde Wholesale Grocers at the Chisca Hotel. During the afternoon and evening of July 13, 1967, Mrs. Cain had several drinks of vodka and orange juice.
About 11:00 or 11:30 P.M. Mrs. Cain left the Chisca Hotel and started home driving her automobile. She admitted being in the area of Carnes and Josephine Streets but denied having struck the plaintiff, Wheeler, with her car. At the time he was struck, Gerald Wheeler, in the company of several friends, was standing near a bicycle trying to get the kickstand tightened. An automobile struck Gerald demolishing the bicycle and knocking him some 15 to 20 feet into the air. The driver of the car slowed down, looked back and then drove on. The intersection was fairly well lighted.
Eye witnesses identified the driver of the automobile as a white woman traveling alone in a light colored automobile probably a Pontiac. A motorist, Naosba Richmond, accompanied by Cynthia Huey, was in the vicinity, heard the crash, and saw a white automobile in or near the intersection. Richmond followed the automobile to the next intersection of Josephine and Spottswood Streets where Richmond and his companion got a good look at the license number of the white automobile. Richmond gave the number to the police; an alarm was given over the police radio to be on the lookout for a hit-and-run driver describing a white 1966 Pontiac, license number BH--9423.
A police squad car arrived at the scene of the accident at 12:25 A.M. July 14. The officers talked to motorist Richmond and discussed with him the license number of the hit-and-run car. It was determined that there had been some error in the reporting by some policeman as to the license number on the automobile. Sometime between 12:00 and 12:30 A.M., July 14, the witness Norman and his wife were driving north on Prescott between Lamar and Park Streets in the area of the intersection of Josephine and Carnes when they saw a Pontiac automobile driven by a white woman run a stop sign and turn left on Prescott Street forcing the Norman automobile to stop to avoid being hit.
The Normans then watched the driver of the white Pontiac automobile in their rear view mirror and saw her strike a utility pole some two blocks away. Norman started back to help but the Pontiac pulled off and kept going north on Prescott toward Park Avenue. The witness Norman followed the white Pontiac for one or more blocks and then turned in to a Krystal Hamburger place and advised Patrolmen Fitzgerald and Rich sitting in squad car 40 that the white Pontiac had hit a utility pole. Officers Fitzgerald and Rich in the squad car then caught up with the white Pontiac, checked the license number of the Pontiac with the license number they had heard over the police radio. They identified the automobile as the hit-and-run car which had struck Wheeler. They stopped the automobile, arrested the defendant, Mrs. Sara Cain. They observed a blank stare on her face and an odor of an intoxicant.
Mrs. Cain told officers that she did not remember hitting the utility pole on Prescott and did not remember hitting the boy on the bicycle. At 12:15 A.M. Officer Fitzgerald called the dispatcher at the police station reporting that the white Pontiac No. BH--9423 had been stopped. After further interrogation at the scene after being shown the scene and the damaged portion of the Pontiac automobile, Mrs. Cain admitted that she remembered hitting the pole but did not recall striking anything else.
Assignments of error I and II are to the effect that the judgment of the lower Court is against the weight and preponderance of the evidence and is also legally erroneous. In support of these two assignments of error the solicitor for appellant, Mrs. Sara Cain, very forcefully points out numerous discrepancies in the testimony of plaintiffs' witnesses. He calls attention to an erroneous report by one of the persons living in the neighborhood that the hit-and-run driver was driving a beige Ford automobile and that on one occasion one witness described the number of the hit-and-run vehicle as being BH--9432 instead of BH--9423.
In our opinion the preponderance of the evidence supports the finding of the Trial Judge that Mrs. Cain was the driver of the automobile which struck the plaintiff Wheeler. She had been drinking during the afternoon; she was driving an automobile with a number similar to that identified by the witnesses of the area; she struck a telephone pole and kept driving; she denied having struck the telephone pole; she offered no reasonable explanation for being off her course on the way home. In spite of the numerous discrepancies mentioned by solicitor for appellant, we hold that the Trial Judge reached the correct conclusion in finding that the defendant was the driver of the hit-and-run automobile. Therefore, assignments of error I and II are overruled. We find no merit in the appellant's insistence that the plaintiff himself was guilty of proximate contributory negligence.
Assignment of error No. X is to the effect that the Trial Judge erred in not allowing Attorney Ross Houpt to testify that his client, Mrs. Cain, intended to and instructed him to plead her guilty to an indictment for leaving the scene of the accident involving a utility pole but not to an indictment for leaving the scene of the accident involving the plaintiff, Gerald Wheeler. The minutes of the Criminal Court of Shelby County, Tennessee, Division V, were introduced to show that the defendant, Mrs. Sara Cain, had been indicted by the grand jury of Shelby County on charges of reckless driving and also on charges of failing to stop her automobile to see if an accident resulted in injuries to Gerald Wheeler and in failing to render assistance to the said Gerald Wheeler. Indictments were returned July 28, 1967. On Friday, December 1, 1967, the defendant, Mrs. Sara Cain, through her attorney Mr. Houpt, entered a plea of guilty to both indictments.
Mrs. Cain testified that she was not present in Criminal Court on the day the guilty plea was entered but was, in fact, recovering from an operation and that it was her intention to plead guilty to leaving the scene of the accident involving the utility pole but under no circumstances did she intend to plead guilty to leaving the scene of an accident involving Gerald Wheeler since she had denied being involved in that accident and that she had instructed her attorney to act in that regard for her. Mr. Houpt was presented as a witness for the defendant, Mrs. Cain. He testified that he had represented Mrs. Cain in a hearing before the City Judge in which several of the witnesses who were witnesses in the Circuit Court case had also testified; that the witness, Naosba Richmond, had testified in City Court that he could not identify Mrs. Cain as the driver of the automobile and that none of the other witnesses had been able to identify her as the driver of the automobile.
With reference to the plea of guilty which he had entered for Mrs. Cain in the Criminal Court, Mr. Houpt was in the process of explaining how he was acting under power of attorney from Mrs. Cain to enter a plea of guilty and that he had worked out an agreement with the Assistant Attorney General. An objection was interposed by attorney for the plaintiffs. Mr. Bearman, attorney for defendant, stated to the Court that he hoped to be able to prove by Mr. Houpt that the plea of guilty which was entered was intended to be a plea of guilty to leaving the scene of an accident with the utility pole and that there had never been any intention of pleading guilty to leaving the scene of an accident in which Gerald Wheeler was hurt.
We copy the following from the record:
To continue reading
Request your trial
-
Harrell v. Ames
...v. Whitman, 82 N.M. 739, 487 P.2d 167, 168 (1971); and Walczak v. Healy, Del.Super., 280 A.2d 728, 730 (1971). See also Wheeler v. Cain, Tenn.App., 459 S.W.2d 618 (1970); Note, 7 Wake Forest L.Rev. 528, 531 (1971); Comment, 46 Va.L.Rev. 1036, 1047 (1960); Comment, 46 Iowa L.Rev. 645 (1961);......
-
Employers Ins. of Wausau v. Carter
...to testify regarding the necessity for such treatment and the reasonableness of the charges made therefor. See: Wheeler v. Crain, 62 Tenn.App. 126, 459 S.W.2d 618 (1970). Such testimony does not violate the hearsay evidence The final insistence of the appellants is that the trial court erre......
-
In re Joseph G., E2012-2501-COA-R3-PT
...as Evidence Act, Tenn. Code Ann. § 24-7-111 [since repealed]. To avoid interpretive mistakes such as that in Wheeler v. Cain, 62 Tenn. App. 126, 459 S.W.2d 618 (1970), the proposal specifically requires that the declarant have "a business duty to record or transmit" information. Without tha......