Whitehurst v. Howell

• Decision Date: 08 February 1936
• Citation: 98 S.W.2d 1071
• Parties: WHITEHURST v. HOWELL (two cases). HOWELL v. WHITEHURST.
• Court: Tennessee Supreme Court

98 S.W.2d 1071

WHITEHURST v. HOWELL (two cases).

HOWELL v. WHITEHURST.

Court of Appeals of Tennessee, Middle Section.

February 8, 1936.

Certiorari Denied by Supreme Court December 4, 1936.

Appeals in Error from Second Circuit Court, Davidson County; A. B. Neil, Judge.

Actions by B. S. Whitehurst and by Mrs. Annie May Whitehurst against Morton B. Howell, 4th, and by R. B. C. Howell, Jr., against B. S. Whitehurst. The three cases were tried together. From an adverse judgment in the first action, B. S. Whitehurst appeals in error, from an unsatisfactory judgment in the second action, Mrs. Annie May Whitehurst appeals in error, and from an adverse judgment in the third action, R. B. C. Howell, Jr., appeals in error.

All judgments affirmed.

A. J. Grigsby, Jr., and W. J. Byers, Jr., both of Nashville, for the Whitehursts.

A. Lawson Davis and White & Howard, all of Nashville, for the Howells.

FAW, Presiding Judge.

About 7 o'clock p. m., on November 4, 1932, there was a collision at the intersection of Ninth Avenue South and Glenn avenue in the city of Nashville between two automobiles. One of the automobiles was a Chevrolet sedan owned by R. B. C. Howell, Jr., and the other was a Ford town sedan owned by B. S. Whitehurst.

At the time of the collision, Morton B. Howell, 4th, a brother of R. B. C. Howell, Jr., was driving the Chevrolet, and he was accompanied by John Aldridge, a negro man about twenty-four years of age, who was seated beside him. B. S. Whitehurst was driving his Ford car, and his wife was riding beside him on the front seat.

Both cars were badly damaged by the impact of the collision, and Mrs. Whitehurst and John Aldridge suffered personal injuries.

Three separate actions at law were instituted in the circuit court of Davidson county to recover damages for injuries which, it was averred by the respective plaintiffs, had been suffered by them as the result of the aforesaid collision, and these three cases were tried together, by consent, before a jury in the circuit court, and each of the cases has been brought to this court by an appeal in the nature of a writ of error, but all of them have been brought up in one transcript and tried together here.

However, separate verdicts and judgments were rendered, separate motions for new trial were made and overruled, and separate appeals were granted, in the three cases below. The joint trial was ordered by the court, with the consent of the parties, presumably for the reason that all of the cases arose out of the same transaction, depended in large measure upon the same proofs, and a joint trial would serve the convenience of the court and litigants, and save much time and expense. 64 C.J. pp. 35, 36.

But such joint trial did not, and could not, operate as a technical consolidation of the three cases. Lumiansky v. Tessier, 213 Mass. 182, 99 N.E. 1051, Ann. Cas.1913E, 1049, 1052; Yardley v. Rutland Railroad Co., 103 Vt. 182, 153 A. 195, 196; Azinger et ux. v. Pa. Railroad Co., 262 Pa. 242, 105 A. 87, 88.

The verdict and judgment in each of the three cases (in so far as it is challenged by assignments of error) must be tested here by the pleadings in that case and the evidence pertinent and relevant thereto. Of course, the major part of the evidence was relevant to the issues in each and all of the cases.

A brief preliminary statement with reference to each of the three cases, separately, will tend to clarify the issues before this court presented by the assignments of error.

B. S. Whitehurst v. Morton B. Howell, 4th.

On February 7, 1933, B. S. Whitehurst sued Boyte Howell, Jr., and Morton B. Howell, 4th, in the circuit court of Davidson county for $1,000 as damages, and averred, in the first count of his declaration filed on the same day, that on November 4, 1932, plaintiff and his wife, Annie May Whitehurst, were riding in an automobile on Glenn avenue, in the city of Nashville, Davidson county, Tenn., going in a westerly direction and approaching the intersection of Ninth Avenue South and Glenn avenue, and intending to cross Ninth Avenue South and continue in a westerly direction on Douglas avenue; that plaintiff (B. S. Whitehurst) had come to a full stop before reaching the east side of Ninth avenue, and before entering Ninth Avenue South, and while in the exercise of due caution and care to avoid collision and accident, and while standing still, a Chevrolet car owned by defendant Boyte Howell, Jr., and operated at the time by the defendant Morton B. Howell, 4th, and by defendant Boyte Howell, Jr.'s, agent, with Boyte Howell, Jr.'s, knowledge, consent, and approval, approached from the north on Douglas avenue, crossing said Douglas avenue in a southerly direction, and entered Ninth Avenue South and proceeded south towards the car in which plaintiff was riding at an unlawful, reckless, and highly dangerous speed, whereby said defendant's car was negligently, willfully, violently, and with great force and violence, driven against, into, on and over the car in which plaintiff was riding, striking Annie May Whitehurst, wife of plaintiff, with great force and violence, whereby she was knocked about the car in which she was riding, and cut, bruised, and injured on her head, face, body, arms, and legs, and greatly shocked physically and nervously, and rendered unconscious, whereby great physical and mental suffering has been endured by the said Annie May Whitehurst, and it has been necessary to employ doctors and to purchase medicines in an effort to be cured, and by which she has been rendered less able to perform her duties, and less capable of enjoying life and is permanently injured; that because of said injuries inflicted by the negligence of said defendants as aforesaid, plaintiff's said wife was caused to suffer physical pain and mental anguish and permanent nervous derangements and disorders all through no fault or negligence of plaintiff; that because of said injuries to his said wife, plaintiff was forced to call in doctors for treatment and his said wife had to remain under the treatment of doctors for a period of _____ weeks; that plaintiff wholly lost the services of his said wife from that day until _____; and by reason of the premises, plaintiff was obliged to lay out and expend divers sums of money amounting in all to $___ as expense in endeavoring to get his said wife cured of her injuries as aforesaid.

Plaintiff further avers that he is the owner of said automobile which was badly wrecked by virtue of the accident caused by the careless, negligent, and reckless driving of defendants, and he has had to expend the sum of $___ in having same repaired.

Complainant further avers that the driver of defendants' automobile gave no warning of his approach, and that he was not observing what was in front of him nor looking where he was going, and that while so driving said automobile, the wife of plaintiff was run over and injured as aforesaid, and her said injuries were directly and proximately caused by the carelessness, negligence, and recklessness of the said defendants.

The declaration of B. S. Whitehurst contains two counts, and the second count contains substantially the same averments as the first, except with respect to the alleged negligence of the defendants named in the declaration. In the second count it is alleged that the Chevrolet car crossed Douglas avenue in a southerly direction, entered Ninth Avenue South, and proceeded south towards the car in which plaintiff was riding, at an unlawful, reckless, and highly dangerous rate of speed in excess of thirty miles per hour, in violation of section 5 of Ordinance No. 385, of the city of Nashville, which section is in words and figures as follows:

"Sec. 5. Be it further enacted, That it shall be unlawful for any vehicle to exceed a speed of thirty miles per hour within the corporate limits of said City. No vehicle shall exceed a speed of fifteen miles per hour at any crossing or intersection of the street, highways or other thoroughfares of said City provided, that this provision shall not apply on such streets as are hereinafter designated as `Arterial Highways'; and, provided further, that no vehicle shall exceed a speed of ten miles per hour while within the confines of any safety or school zone of said City, or when turning corners."

Each of the named defendants, Boyte Howell, Jr., and Morton B. Howell, 4th, filed a plea of not guilty to said declaration of B. S. Whitehurst. After he filed his plea as aforesaid, Boyte Howell, Jr., in some way unexplained in the transcript brought to this court, disappeared from the record as a defendant to the suit of B. S. Whitehurst. It was stated by the trial judge that "this case had been tried before," but the result of such former trial is not disclosed. It might be surmised that, either as the result of the former trial or by voluntary action of plaintiff Whitehurst, the case against Boyte Howell, Jr., had been dismissed. However this may be it is clear from the record that Morton B. Howell, 4th, was the sole defendant to the suit of B. S. Whitehurst at the trial now under review, and the jury found the issues in his favor; whereupon the trial court dismissed said suit of B. S. Whitehurst and adjudged that defendant Morton B. Howell, 4th, recover of plaintiff B. S. Whitehurst all the costs of the cause. B. S. Whitehurst moved for a new trial, but his motion was overruled, and he thereupon prayed, was granted, and perfected an appeal in the nature of a writ of error to this court.

Mrs. Annie May Whitehurst v. Morton B. Howell, 4th.

On February 7, 1933, an action was brought in the circuit court of Davidson county by B. S. Whitehurst and his wife, Annie May Whitehurst, against Boyte Howell, Jr., and Morton B. Howell, 4th, to recover $5,000 as damages for personal injuries suffered by Mrs. Annie May Whitehurst in the same collision described in the aforesaid declaration in the case of B. S Whitehurst v. Morton B. Howell, 4th....