Wilson v. Moudy

• Decision Date: 06 August 1938
• Citation: 123 S.W.2d 828,22 Tenn.App. 356
• Parties: WILSON v. MOUDY et al.
• Court: Tennessee Court of Appeals

123 S.W.2d 828

22 Tenn.App. 356

WILSON v. MOUDY et al.

Court of Appeals of Tennessee, Middle Section.

August 6, 1938

Certiorari Denied by Supreme Court Jan. 21, 1939.

Appeal in Error from Circuit Court, Robertson County; Dancey Fort Judge.

Personal injury action by Evelyn Wilson against William Moudy and others. From a judgment for plaintiff, defendants appeal in error.

Affirmed.

Charles Willett, of Springfield, for plaintiff in error Moudy.

A. L Dorsey, of Springfield, guardian ad litem, for plaintiff in error Edwards.

O. H Ellis, of Springfield, for defendant in error Wilson.

FAW Presiding Judge.

This is an appeal by William Moudy and Ralph Edwards, defendants below (and hereinafter called defendants), from a judgment for $10,000 and costs against them and in favor of Miss Evelyn Wilson, the plaintiff below (and hereinafter called plaintiff).

The "appeal" in this case "must be construed to mean an appeal in error", as a simple appeal does not lie from a judgment in an action at law. Spalding v. Kincaid, 1 Shan.Cas. 31; Manley v. City of Chattanooga, 1 Tenn.App. 65.

Plaintiff's suit for $25,000 as damages for personal injuries was brought in the Circuit Court of Robertson County on September 15, 1936, against William Moudy and Dudley McMurry, and plaintiff filed a declaration, in three counts, at the time the summons issued.

On September 27, 1936, defendants Moudy and McMurry filed a plea of the general issue--not guilty--to the first count, and a demurrer to the second and third counts, of plaintiff's declaration.

Thereafter, by order of the Court, made on motion of the plaintiff, Ralph Edwards was made a party defendant, and it appearing that said Edwards was a minor, A. L. Dorsey, a member of the Robertson County Bar, was appointed guardian ad litem to defend the suit for said minor defendant, and the plaintiff, by leave of the Court, amended her declaration by inserting the name of Ralph Edwards at certain specified places in each of the three counts of the declaration and adding a fourth count thereto, and thereupon defendant Ralph Edwards, through his said guardian ad litem, filed a demurrer to the plaintiff's declaration.

At the February term 1937, the Court overruled the aforesaid demurrers of the defendants, to which action of the Court the defendants reserved exceptions, and all of the defendants filed pleas of not guilty to plaintiff's declaration as amended.

Upon the issues thus made, the case was tried before Judge Fort and a jury at the June term 1937, but at the close of the plaintiff's proof in chief the Trial Judge, on motion of defendant Dudley McMurry, directed the jury to return a verdict of not guilty as to said defendant, which was accordingly done. There was no exception to the aforesaid peremptory instruction in favor of defendant McMurry, and the propriety of the verdict in his favor is not questioned in this court.

Upon evidence and argument of counsel on behalf of plaintiff and the defendants (Moudy and Edwards), respectively, and the charge of the Court, the jury found the issues in favor of the plaintiff and against defendants Moudy and Edwards, and assessed the plaintiff's damages at $10,000, and judgment was entered accordingly.

Defendants Moudy and Edwards filed separate motions for a new trial, which were overruled by the Court, and thereupon said defendants prayed, and were granted, an appeal to this court, and each of them perfected his appeal by filing the oath prescribed for poor persons, and a joint bill of exceptions was filed in due season by the defendants.

It appears from the bill of exceptions that a motion for a directed verdict on behalf of defendant Edwards was made at the close of the plaintiff's evidence in chief and renewed at the close of all the evidence. There was no motion for a directed verdict on behalf of defendant Moudy.

It appears from undisputed evidence that the plaintiff, Miss Evelyn Wilson, suffered serious and permanent personal injuries about 12:30 o'clock A. M. on February 6, 1936, as the result of the "wrecking" of an automobile in which she was riding with defendants Moudy and Edwards. The automobile overturned, and, in the act of overturning, it struck a telephone pole, or post, with such great force as to demolish and "wreck" the automobile so completely that no attempt was ever made to repair it. The automobile was a "1935 Ford Coupe", owned by, and registered in the name of, Dudley McMurry, defendant below, who was the grandfather of defendant Ralph Edwards, and the latter borrowed the car from his said grandfather several hours before the "wreck", and he and his intimate friend and associate, defendant Moudy, drove to the home of plaintiff in Springfield, where plaintiff entered the car and the three of them drove to Coopertown, seven or eight miles from Springfield. Plaintiff was defendant Moudy's "date" for the evening in question, and defendant Edwards had a "date" with Miss Frey, a young lady at Coopertown.

The respective ages of the plaintiff and defendants Moudy and Edwards, at the time of the collision and injuries to plaintiff, were, in the order named, as follows: Plaintiff twenty-two years, Moudy twenty years and Edwards eighteen years.

When the trio reached Coopertown, Miss Frey got in the coupe, and the four young people first went to a basket ball game at or near Coopertown, and then drove to Oakhurst Inn at Springfield to get some soft drinks and something to eat, after which they drove back to Miss Frey's home at Coopertown, where the others left Miss Frey and then drove back to Springfield, and the collision in and by which plaintiff suffered the injuries for which she sued in this case occurred on a street near the corporate limits of the municipality of Springfield shortly after midnight.

Defendant Edwards drove the car to Coopertown and return to Springfield on the first of the two trips, and, on leaving Oakhurst Inn, defendant Moudy took the wheel and drove the car to Coopertown and return to Springfield on the second trip, and was driving at the time the car overturned against, and collided with, the telephone pole, as aforesaid.

Before proceeding further with the statement of the facts supported by some material evidence (for this is as far as we need to go in stating the facts), it will be well to ascertain the averments of the plaintiff's declaration upon which she sought to predicate her claim that negligence of the defendants was the proximate cause of her injuries. Where the declaration avers specific acts or omissions of the defendants which would in law constitute actionable negligence, it will avail the plaintiff nothing to prove other and different negligent acts or omissions. East Tennessee Coal Co. v. Daniel, 100 Tenn. 65, 42 S.W. 1062; Elkin Motor Co. v. Ragland, 6 Tenn.App. 166, 171; Smith v. Fisher, 11 Tenn.App. 273, 291, and other cases there cited.

The fourth count of plaintiff's declaration is as follows:

"The Plaintiff, Evelyn Wilson a citizen and resident of Springfield, Robertson County, Tennessee, sues the defendants, William Moudy, Dudley McMurry, and Ralph Edwards, a minor under the age of twenty one years, citizens and residents of Springfield, Robertson County, Tennessee, for Twenty Five Thousand ($25,000.00) Dollars damages and for cause of action states:

"The Defendant, Dudley McMurry, was on March 6th, 1936 the owner of one certain Ford Coupe Automobile and the same was registered in his name in the County Clerk's Office of Robertson County, Tennessee under License No. 311-645 for the year 1935.

"On said date and at said time more specifically hereinafter set out the defendant, Ralph Edwards, a grandson of the said Dudley McMurry, was using said automobile, as the agent, servant and employee of his grandfather and with his consent and permission.

"On the aforesaid date at or about 12:30 o'clock A. M., the plaintiff, while in the exercise of ordinary care for her own safety, was riding in the aforesaid automobile as the invited guest of the defendants, which was being driven by the defendant, William Moudy, as agent, servant and employee of the defendant, Ralph Edwards and Dudley McMurry, in an easterly direction on Highway No. 49 approaching the City Limits of Springfield, Tennessee, and under the direct supervision, direction and control of the defendant, Edwards, who was in the car and sitting on the seat with the defendant Moudy and the plaintiff.

"The Plaintiff refers to the statement of facts contained in the First Count of her declaration and the grounds of negligence and statements of injuries, losses, and damages therein alleged, and adopts the same as fully as though incorporated therein, haec verba, and further states that the defendant, Ralph Edwards, to whom the care and custody of the car was intrusted had and it was the duty and power of supervising, directing, and controlling the operation of the said automobile while being driven by the defendant William Moudy, but failed or refused to do so at the aforesaid time and carelessly and negligently allowed the defendant William Moudy, to operate the said automobile carelessly, heedlessly, recklessly and in a negligent and unlawful manner and without being vigilant and watchful for the safety of the plaintiff and others, all of which was the direct or proximate cause of the aforesaid accident.

"Plaintiff alleges that all of her said injuries, losses, sufferings and damages resulted directly and proximately from the negligence of the defendants as aforesaid, and for all of which she sues the defendants and each of them for Twenty Five Thousand ($25,000.00) Dollars damages and demands a jury to try this cause."

The "grounds of negligence" averred in the first count of pl...