Gordon's Transports, Inc. v. Bailey

GORDON’S INC., Plaintiff In TRANSPORTS, Error, v. MRS. MARY A. BAILEY, Defendant In Error. 294 (2d)

S. W. 313. February 22,

Western Section at Jackson. 1956.

Rehearing denied March 1956. by Supreme Petition for Court, September Certiorari denied 3, 1956. Petition to by Supreme Court, Rehear Certiorari denied October

1956. Wrape, Memphis, for Elliott and W. G-lenn James plaintiff in error. Memphis, Thomas Porter C. Ehem,

John S. defendant error. appeal an J. This cause involves in the

BEJACH, Transports, Inc., error, of a writ of G-ordon’s nature judgment against it $20,000 in the rendered from sum County, Shelby Tennessee. There the Circuit Court previous cause, same both of trials of had been two wayside exception bills mistrials, but which resulted in testimony preserving in each filed, seem to have been During defend- second trial, the former trials. having her declaration remarried, was ant in error been Mary change she sues from amended to name which Bailey Mary ally. originally was Nunn suit A. A. brought by Mary Bailey Mrs. A. administratrix of Bailey, estate of Frank W. her husband, former deceased, on account of his death which the result of a collision Highway U. S. 51, near Richview in the State Illinois, collision occurred 5:30 A. M., about —which July originally brought, 1952. The as suit, was also against plaintiff-in- Herman E. Washburn, of the driver error’s truck or trailer-tractor as combination; and, originally brought, recovery sought prop- the suit of also erty damages During in amount the of $1,750. one two former trials, as however, nonsuit was taken property damage A claim. nonsuit was also taken as to Herman E. Washburn. parties styled

For convenience, will be in the as plaintiff plaintiff-in-error, lower court, and defendant, having here been defendant in lower and court, having defendant-in-error been the below. alleges qualification Plaintiff’s declaration her as ad- ministratrix her Bailey, deceased husband, Frank W. alleges and he died result of a collision between by being automobile an driven him and a motor vehicle of defendant, driven one Herman E. Washburn. pleads wrongful Plaintiff’s declaration the Illinois death alleges statute, and that the death of her husband was negligence occasioned operating defendant’s in its equipment upon in a careless and reckless manner, wrong highway, failing keep right side highway, operating side speed, excessive at an not having proper keeping its vehicle under control, proper failing change ahead, lookout and in direction perilous stop plaintiff’s when the situation of husband apparent, as became a result which a collision took place immediately in which said husband was pleads killed. The State declaration the statutes speed driving, Illinois relative to reckless restrictions, driving right roadway, passing side on the of a vehicles opposite regulating proceeding directions, equipment she of motor which statutes vehicles, avers of her were defendant with resultant death violated damage her of $20,000. husband in the amount pleas contributory guilty Defendant filed of not negligence. requiring an so After order court to do, it special setting pleas defenses, filed forth its also special every allegation pleas common law or statutory negligence alleged in the declaration was denied. Defendant accident referred admitted that the place place took at the declaration time place, equipment alleged, its and that that time and freight by being operated as a carrier common authority pursuant motor vehicle Interstate the at that time Commission, Commerce and averred that and perfect place, equipment its was mechanical condition by experienced being operated driver in a careful, and an ' special pleas, prudent manner. cautious and Defendant’s the averred that at answer, filed in form of an further place time referred in the the accident and agent operating declaration, servant its its and was Highway equipment northerly U. on a direction S. easterly right highway, on the side a N., or of said at point approximately one north of and one-tenth miles cautiously, upon right carefully, Eiehview, the Illinois, side of a slow reasonable rate of road, hand at and the rights regard safety speed, all to the and with due and highway. persons in Said answer lawful use of said place time and of collision averred further that at auto- intestate his said with automobile operated being southerly upon a mobile was direction highway, being Bailey, Frank said said W. driven point, deceased, and that at a south where bound north traffic there is a curve in road from west, placed Bailey’s operated if which on automobile, right highway, of said said curve. side inside of Bailey operating It averred that was his automobile aat high, dangerous, speed, under the and rate of reckless existing, then and that drove same circumstances he suddenly immediately and in front vehicle motor equipment operated being northerly defendant in upon highway, losing direction said control same either driving or same in such manner that it across veered . highway center of left side said hand thereof, Bailey crashing insofar as was into concerned, same bumper left front and of defendant’s front wheel motor pulled with the vehicle, that both vehicles were result highway into an embankment on across and westerly highway. Bailey side of the It avers that operating properly adjusted his automobile without lights keeping proper without brakes, lookout having high without the same under ahead, control, dangerous speed, contrary rate of to all laws of the road and Illinois, statutes enacted the State of Bailey negligence such of said were acts acts of solely proximately alone caused contributed causing Bailey. Frank W. death said pleas, By further defendant set forth and relied upon authorizing of statutes of State Illinois, Department Highway of Public Illinois Works and Build- speed ings prescribe which a limits, it misde- make any person comply speed to fail to with such meanor defining driving, regulations, providing reckless yeMcle greater speed than operation at a aof negligence. The prima of permissible facie evidence pleas Illinois that the said in further averred defendant at the curve had, Department to in said statutes referred placed occurred, upon involved accident here which the indicating warning exist- devices control and traffic speed establishing of dangerous limit a curve, ence of a place it was per time and that at said hour, and 35 miles ' Frank highway raining and that said was wet, operating in de- Bailey, manner in automobile his "W. disregarded special all pleas defendant, of scribed in the guides, warnings speed devices, traffic control laws, speed of miles excess his and drove automobile recovery plaintiff. barring negligence per hour, such pleaded expressly having same, as it did Without . statutory above, defendant law referred also Illinois applicable rely attempted law common on the Illinois notified cause, to suits the nature involved attorneys plaintiff’s effect, to that and furnished to attorneys plaintiff’s the Illinois memorandum construing establishing common law. such decisions attorneys plaintiff’s filed in this Court denied The brief given Whereupon, defend- such notice was to them. suggest attorney undertook a diminution ant’s bring up so as Court, to this record in this cause, wayside part herein, the record one both bills previous exception in the lower court after mis- filed wayside exception, cause, bills trials —which given claimed, would establish that notice was such attorneys such and that memorandum compliance authorities had been furnished, Illinois Supplement the 1950 9773.7 of with Section Code to the provides: 24-610, T. A. Sec. now C. Tennessee, ‘‘ present Any party may any also to tlie trial court of such laws, admissible evidence to enable but, party jurisdic- to offer evidence of tbe in law another judicial be tion or to ask that notice taken thereof, given reasonable notice shall be to adverse parties pleading in the either or otherwise.” open

In of the view admission in court attorney, plantiff’s that notice of that character in- had given fact been and such memorandum of authorities unnecessary grant sug furnished, we think it gestion any of diminution or issue writ of record, purpose bringing wayside up certiorari for said exception. proper disposition bills We think this is a notwithstanding of the matter, fact that attorney sought couple said with his admission, de sought nial conclusions be drawn from that fact attorney. being defendant’s The fact admitted, conclusions be drawn from that fact, are, think, we for matters determination Court. suggestion

There is also of diminution of the purpose bringing up record Court special instructions offered behalf of in defendant at the alleged being trial in court, of this cause the lower special such instructions been filed the lower court had transcript but were not included sent this court. suggestion This diminution of record, also, we granting should because the think, denied, it could purpose. special serve no useful instructions, even though parts filed lower not in the did court, become they incorporated record; technical unless and, were exceptions, bill in the same become did not and cannot part become, now the record this Court. v.Ward 996; State, Burton, Tenn. S. W. Rhoton v. 724-728, Taylor App. Robertson, 12 v. 164, 171-172; 2 Tenn. requests though special are these Even 326. copied trial, motion for a new into defendant’s transcript part trial, are in the motion for new 4 Tenn. Grooms, Hood sufficient. ns, before Vaughn, Roofing & App. Co. v. Stone 515; Adamant 511, App. Taylor 12 Tenn. Robertson, 170; 7 . 326 320, defendant’s of all the evidence, the conclusion

At attorney was a directed which made motion for a verdict judge. by trial sub- The cause was then overruled jury which verdict in favor returned a mitted to After for $20,000. motion a new in sum a appeal a in the overruled, been an nature trial had perfected of error was Court. to this writ cause is material evidence in this Since the disposition Court, more state- a detailed testimony establishing same ment the facts and will made. now be approx- at involved in suit occurred accident

imately July morning on 5:30 A.M. 1952 on the Highway U. mile S. a little more than one north highway essentially Illinois. The a Richview, runs direction, north south is of concrete construction patched asphalt, with 18 feet wide, and with a center highway. marked on the time of line At the the accident drizzling falling. a rain was For south bound traffic very sharp right, there a curve curve designated dangerous been Illinois has officials as a speed per curve and 35 miles hour. zoned limit a of. On the or western there was an this.curve, inside side high approximately 8 with ' embankment feet bushes high top 3 ieet on of this embankment. Bailey, Navy

Frank career at Great a stationed man, Training Cliicgo, Lakes Naval Illinois, Station was driving approx- weighing automobile, Pontiac imately southerly pounds, trip 4,000 direction, in a family Memphis. papers visit his Official in his possession establish he was authorized to leave morning Lakes 12:01 Great A.M. on the of the acci- place approximately dent. The of accident miles Training south of Great Lakes Station. Defendant’s equipment, designated motor known and as a tractor- being trailer driven Herman unit, Washburn, experience. years driving driver with 25 Said Wash- originally joined along burn was aas defendant with corporation, defendant but inasmuch as a suit has non been taken he is not him, now involved. Washburn dangerous was familiar with nature of the curve, as testimony, appears speed had from his his reduced per approached about 30 miles hour as he the curve. approximately long, The tractor-trailer unit was 42 feet gross weight approximately pounds. with a of 52,000 According testimony eye to the of the Pon- witnesses, speed driven automobile was of 60 to tiac at a from per speed per a 35 mile miles hour hour zone. place point

The collision between the took vehicles at approximately the 10 feet south the southern end of The curve. center of Pontiac into con- front the came bumper tact with left front wheel of the the tractor- sharply turning trailer, front wheels of the the tractor locking position. left them the in that The driver steering of the was from tractor knocked under the equipment. lost his Pontiac wheel and control ploughed which continued to tractor, under the move speed, pushing one-half forward about to two-thirds at northwesterly along the with it in direction Pontiac highway into the embankment across instantly. Bailey side. Prank western was killed eye There Herman were two witnesses to the accident, tractor, the driver Washburn, of defendant’s and Sam Peoples standing approximately Peoples. 150 feet was Peoples impact. point from the Both Washburn and point impact side was eastern testified that on the highway. Shortly after Eric accident, the occurrence of independent investigator, and under- Nordstrom, an an by taker name Gerald at the Galbreath, arrived Captain Lee hour, the accident. Within one scene Lyons Department Safety, Illinois of Public of the study physical A of the facts the scene arrived. had made, within minutes after the accident was Peoples, Nordstrom, and Washburn, Gal- occurred, Lyons Captain Subsequently, arrived, had breath. after Lyons, study Nord- Washburn, made a similar strom and Galbreath. Lyons,

Peoples, Nordstrom testified Washburn portion major from the collision was of the debris highway, scattering eastern on the side located gouged mark was a fresh there out west; and that past beginning 18 inches Pontiac, highway side same, on the east center line high- gouged center line of out mark ran across the point way westerly where direction towards in a continuing for a distance of rest, vehicles came to 2% highway. the There was line of center feet west testimony plainly dual tire visible marks ran that also n ' highway to the side vehicles. eastern from the Peoples, Lyons Washburn all state Nordstrom, present, physi- that Galbreath was that discussed he groups cal facts with each of these two of four, and that including agreed respect all, Galbreath, with to debris, gouge place tire marks, marks, and that the accident took They highway. on the eastern side also testified that, at scene of the accident as well as at the sub- sequent inquest, (Wash- that Galbreath told Washburn he burn) worry nothing had it that was clear about, highway. that the accident occurred on his side Galbreath, on the other while he hand, admitted present investigations he was when the two were made, agreed findings groups denied that he of the two He disagreement, four. admits that he voiced no but having any denies seen debris on the of the eastern side highway. He that he testified western saw debris highway, sufficiently side of the but did examine it composed. to tell of what was With reference gouged obviously out mark, Pontiac, Gal- began breath testified rather line, that it at the center having than east of center line. He told denied Wash- nothing worry burn that he about. had Manning Memphis Captain Depart- Sam Police expert plaintiff, an introduced witness testi- ment, as heavy light when vehicle vehicle fied come together, circumstances such were involved under heavy vehicle ceases its case, never forward up rear down but the vehicles settle before movement, pavement, into beneath is and that the one mashed traveling per hour will travel 4.4 feet 30 miles vehicle aof second. in Vio

380 testimony Peoples and "Washburn that

The continuously accident moved vehicles involved this undisputed, impact, as is is east to west after the from being testimony was driven their Pontiac speed per viola- 60 from to 70 miles is in hour, which pleaded Likewise, in this tion Illinois cause. of the law presump- rebutting is no there evidence in the record negligence by reason violation tion of established question. Illinois statutes in There is no evidence plaintiff’s tending inte- in the record establish that to prox- contributing guilty negligence state was not proof imately involved, the accident here by required hereinafter referred Illinois common law exercising nor that was due care and caution to, he immediately required prior which also accident, said by Illinois law. this Indeed, declaration in allege negligence cause does even from not such freedom part, causing contributing the cause his exercising due care cau- accident, nor he prior immediately tion to the accident. Court, in error in

Defendant, as has assignments necessary filed of error. It is nine not assignments copy opinion, these of error into this nor separately. They them raise, to discuss as we view them, disposed questions by be five this Court. These disposed separately, application thereto will be and the assignments several of error will number be our identified in discussion. question deals first with trial refusal give requests presented by

judge special two defen- dant.

381 pointed special requests As was out above, these incorporated were defendant, bill exceptions, and bence cannot considered Court. Ward v. 724, Tenn. State, 996; S. W. Taylor App. Rhoton v. Burton, Tenn. 171-172; App. Robertson, 12 Tenn. 320, 326; Grooms, Hood v. Roofing 511, 515; & Adamant Stone Co. Vaughn, App. question v. 7 Tenn. 170. The here in presented assignments volved was defendant’s assignments accordingly, error, and 3. Said are, over ruled. question, presented by

The second which is defen assignment. dant’s of error number is whether six, or this not cause should be reversed because the failure part judge, passing on the of the trial on defendant’s a motion for trial, new to exercise his function as the juror. Broyles, McLaughlin thirteenth case of v. The (2d) 36 Tenn. 391, 1020, 1023, S. W. relied support assignment inon In of this error. that ease, affirmatively appears judge it that trial had failed weigh and his function a evidence exercise as juror. language expressly thirteenth The of the decision judge authorizes trial to overrule motion for new case, in which is said that comment, trial without weigh presumption will be that he did evidence juror. in exercise function as In the his the thirteenth showing affirmative trial case, there no stant weigh Assignment judge the evidence. of error failed accordingly, overruled. is, number six presented assignment question, The third which is judge trial or not the error number is whether nine, photographs admitting in evidence certain erred supervision alleged taken under to have been as Exhibits were admitted witness, G-albreath, testimony. objection these D The C, to his D, they photographs a different time taken is that were cause, involved accident from the occurrence correctly they exist- situation reflect the and that do ing place at the accident. general photographs stand is that rule footing diagrams, maps, models, rest

same introducing credibility of the witness extent on the some Ry. Co., & 39 Nashville, Little C. L. them. St. (2d) 293. S. App. 99, W. credibility Galbreath, witness,

The. Appar question certainly jury in cause. testimony, ently jury his the exclusion of believed contrary. testimony a considerable amount hold admission circumstances, (cid:127)Under the we cannot judge photographs con in evidence of these the trial if in error. the admission reversible Even stituted photographs error, these be treated as evidence of such provisions of Williams’ 10,654 under the Section 'error, justify not Ann., Sec. 27-117 Tenn. Code would Code, Assignment is, number nine accord error reversal. ingly, overruled. question presented by assignment fourth is opinion, dominant,

of error number is the and in our one, controlling question assignment in the this law suit. This of error is as follows: treating trial

‘‘The court erred the Tennessee in contributory negligence rule as the law the case, refusing basing charge jury the in thereon, ’ apply the of Illinois.” law gather The law is from Illinois, as we Illinois decisions cited Court, in defendant’s brief in this presumably which Illinois decisions were the same ones by contained in the memorandum defendant’s furnished attorney plaintiff’s attorney at one of the former trials plaintiff’s attorney of this cause, as was admitted during argument in Court, is that in the absence wanton willful misconduct it the defendant part case to he establish that was free negligence from which either caused or contributed to the accident sued for. subject

The Illinois law on this stated West Ry. Chicago page Co. at Liderman, St. Ill. 463, page 468, N. E. 368, L. R. A. of that opinion Supreme Mr. Justice Wilkin Illinois as follows: Court, appellee, though insisting

“Counsel for plaintiff below was shown have been in exercise personal safety of due care for her time of at the upon law accident, insists rule of in some held jurisdictions apply such ‘that actions the con- tributory party injured negligence of the will not defeat the if be shown action that the defendant might, by prud- care exercise reasonable consequences injured have avoided ence, party’s negligence.’ Such has never been law party Here rule this state. is: ‘Where seeks damages recover loss which has been caused by negligence must or misconduct he to show able negligence con- his own or misconduct has party producing the other with that curred proof upon injury; burden of 384 only negligence part

to show not of the defend proper also bnt that he exercised ant, care circumspection; other or, in he was not words, guilty negligence.’ [Aurora Branch] R. R. Co. [Indianapolis L.] 13 Ill. R. Crimes, v. St. R. & 585; [Terre 88 & Co. Ill. Haute Evans, 63; v. Arbend v. Indianapolis] [Calumet R. R. Ill. Co., 111 Iron 202; &] v. 115 Ill. 3 456; Steel Co. N. E. Martin, 358, Chicago Ry. [North Street] Co. Ill. Louis, v. 138 [Illinois Cent.] N. E. R. 9, 451; 27 R. v.Co. Nowicki, 148 Ill. 35 N. E. 29, 358; later cases.” Chicago Rys. In & the case of Pirie Carson Scott Co. v. pages 309 Ill. Co., 346, 352-353, at 141 N. E. 175 172, opinion Supreme in that case written Court Cartwright, of Illinois Mr. Justice law stated follows: is the

“It settled rule of law of state that one complaining negligence merely, where no there is neglect duty willful act or willful or intentional injury, causing guilty recover if an cannot he was negligence, contributing injury complained to of. Chicago R.R. Co. v. Liderman, West St. 187 463, Ill. Chicago, Wilmington 52 R. 367, N. E. L. 655; A. & Vermilion Coal Co. v. Moran, Ill. 71 N. E. Krieger Elgin Chicago & 38; v. R. R. Aurora, Co., E. Ill. 90 N. 266.” Engstrom In the case of Ill. Olson, 480, page Boggs 486, Mr. Justice stated the law, as follows: parties

“If both in an automobile collision are negligence guilty of the same, contributed to recovery by party. be no there can either Before party against collision either can recover

385 party affirmatively prove negligence other, that mast part proximately on the of the other which contrib- part uted to on his collision, and due care own just prior to of the collision.” and at time Savings Chicago Rapid In Foreman Trust & Bank v. McSurely Transit Co., 252 Ill. 151, Mr. Justice subject, stated the law on this as follows: large by “It is established decisions, number of any party without dissent, that seeks where damages recover he must able his be to show that negligence own has with that of not concurred party producing injury, other the burden proof upon guilty is him he to show that was not negligence contributing injury. to the West Chi cago [58 Street R. R. Co. v. Ill. Liderman, 187 463 City N. E. 52 L. 655]; R. A. Hol Macon v. 79] Krieger [69 205 Ill. 643 ; N. E. v. comb, Aurora, [90 &E. 242 Co., C. R. Ill. 544 266]; N. E. Carson Rys. Chicago Pirie & Co. Scott v. 346 Co., Ill. 172]. [141 E.N. The rule is otherwise where the charged defendant with is the wanton and willful injury infliction of an case.” If as law, Illinois announced in the cases by applied developed above, referred to the facts undisputed clearly evidence case, instant defend ant’s motion for should a directed verdict have been only granted. carry Not did fail this cause proof negligence the burden of as freedom from required the Illinois law; but, in she failed addition, completely prima negligence rebut ease facie part proof of decedent established place exceeding time of the accident at the he was Highway speed Illinois limit established Department. as support law, Illinois

In of its contention applicable bar, the case at stated, hereinabove Tennessee cites relies case East defendant on the Railway & W. Lewis, V. S. G. Co. syllabus 603. The first case is follows: brought to recover “In suits in Courts of State personal injuries the another State, for inflicted in controversy, affecting as law the merits the State, controls latter declared Courts the the in our own Courts.” when with the decisions of conflict by Turney, opinion J., written C. case, in that The quoted, and same is follows: as short, damages brought suit recover for “This was Georgia. injuries employee The an in received transcript Georgia governs. law There is in the part tending negligence on the evidence show injury. defendant in error at time charged jury: ‘If defendant’s The court negligence proximate cause was the direct injury, though plaintiff even recover, can plaintiff may fault was less fault, have been if his ’ degree etc. This was defendant, in that than Railway, etc., as in Co. error. The rule laid down Kenney, prima is, 58 ‘To make facie R., Ga. 485, employe, recovery, suing the case for railroad injury company physical resulting from act an prove participated either he must he in which that company or that the was. was not blame successfully reply, may defend dis- latter,

387 proving proposition; by showing either that is, company towas blame, or that the If not. was, both were to neither blame, or if plaintiff cannot recover.’ The conrt should have so charged. applicable The rule in Tennessee is not the case. Reverse and remand.” East Tennessee Railway & G. V. Co. v. 89 Tenn. Lewis, 235, 236, 14 1S. W. 603. approval

This case has been cited with in Whitlow v. Ry. & Nashville, L. Co., C. St. 84 344, Tenn. 348, S. W. 68 L. R. A. 618, 503; Farnsworth, Sullivan v. Chumley 691, 699, 179 W. & 317; S. v. Louisville Pennsylvania R.N. 5R., Tenn. Civ. In re (2d) R. R. Cir. 48 F. Co., 559, 565. See also, notes 32 A. L. A. R. 796 and L. R. 960. So far we can authority controlling it is still a ascertain, in Tennessee Courts. argued

But, case of East Tennessee Georgia Railway &V. G. Lewis, Co. v. law must have pleaded nothing been as defense. There in the reported decision to indicate whether not prior done; if occur, such did case was but, decided Tennessee the Uniform to enactment Judicial passed Foreign Law Act, Notice the Tennessee Legislature Chapter appear 137, of 1943, as Public Acts ing 9773.1-9773.7, in Williams’ Code, Sections Secs. Supplement to 9973.4-9773.9,1950 Tennessee, Code 24-612Tenn. 24-607 Ann. Section sections Code 9773.4 Supplement the 1950 Code of now Tennessee, provides: A. Sec. 24-607, T. C. (cid:127)

“Every judicial this state shall take court of every law and statutes of of the common notice territory jurisdiction the United other state, ’’ States. quoted effect full force Section was in The above in the lower instant case time trial at the court. dealing of other of the United States states laws negligence subject their

with the own recovery, applied right in this been have on effect Snyder among Pac. R. Missouri v. cases, other state, Virginia (2d) Ave. 1008; 192 S. W. Co., (2d) Bailey, 11; 205 W. 185 Tenn. S. Coal v.Co. Dry 498, 516, 20 Tenn. Self, Rice-Stix Goods Co. (2d) 132. W. S. right objections to the three Counsel for raises rely Illinois in the instant case of defendant objections law. are: These required given Section as

First, that no notice was Supplement of Tennessee. the Code 9773.7, is a involved, here matter that the Illinois law Second, being procedure the law of Tennessee, which as precedence. law of takes forum, required being after so defendant, Third, that since any special pleas refer- did include not do, filed therefore, was, defendant law, to the Illinois ence any Illinois nor law, offer evidence to the to- entitled judicial notice of same. Court take have the attorney by plaintiff’s The admission objection. open the first We have takes care of court, ruling already connection with our discussed suggestion necessity granting the of of it obviated the diminution of is record, the further discussion unnecessary. objection, the

With reference to second that the Illinois procedural question only, law in that, therefore, the of law of Tennessee, as law the the should forum, question, have we controlled, think Illinois the law although procedural substantive in effect. form, Jurisprudence, American under title of the “Conflict say subject: Laws”, has this though “Where the of loci, rule the lex framed in presumption, proof, terms of or burden evidence, very goes is such that it to the of the existence con- right tract or the to recover, or of the recovery, defendant whether resist rule is to remedy dominated as one of substance, the rights is that fact affects substantive parties applied, and should therefore be notwith- ’’ standing contrary rule forum. Am. Jur. pages 523-524,Conflict Sec. 203. Laws, In under Restatement of Law, title “Conflict of page appears: following Sec. Laws”, at requirement proof if concerning “Thus of free- place dom from fault exists the law of the injury interpreted if such condition is there a condition of the cause action or as affect- itself, ing recovery, nature or amount of the court apply foreign will rule forum state. portions In case the such remedial and substantive together application of the law are so bound that the procedural rule the usual forum would seriously operative the effect of alter facts under

390 appropriate foreign state. If there is

the law the legal proc- with the no serions interference court’s foreign apply will rule involved, court esses attached from the conditions as freedom fault by that thereto.” law application showing text,

An illustration in quoted fours facts with the 595, above, is on all Section is as in the instant case. This illustration involved follows: injured by alleged

“(1) X, in the state is A, By negligence B state A in the Y. B. sued plaintiff he has cause of action until X, no law negligence that his own did not contribute has shown negli- injury. By contributory his the law Y, gence pleaded defense an affirmative proved by A his defendant. must show freedom contributory negligence.” from reasons

For the stated we think above, proce although defendant, relied Illinois law on in have fact, in is substantive should dural form, applied in the instant case. been objection third counsel raised rely right the Illinois here law, to the of defendant plead defendant because did that, involved, being required question, under the Illinois law after provisions Tennessee, now of the Code Section plead specially, he should 20-921, not have T. A. Sec. C. prove permitted Illinois, to either such law of been judicial knowledge of take same. trial court have the question, opinion, presents than closer our a much This objections. Plaintiff’s brief other two cites either relies & on the cases Provident Life Accident (2d) Insurance v. Prieto, 124, 251; Co. 169 Tenn. S. W. (2d) Creekmore Woodard, 280, v. 241 W. S. (2d) 397; Olins 215 W. Shocket, 31 Tenn. S. support objection. The case & of Provident Life Accident Insurance Co. policy

v. Prieto involved a suit on insurance where an the defense was that the insured had suicide, committed and, had not died therefore, result of an accident. opinion following Supreme the In the of the lan- Court, guage [169 appears 264]: (2d) 124, 83 W. S. object modifying

“It is of the 8767, the section prior statute, to enable a of be forwarned every by of matter intended defense relied on require a defendant, make and to a defendant explicit of defense which all matters otherwise implicit pleas general would be of in the issue. Manifestly'had “[6-8] plaintiff invoked this the plead and section, the defendant failed to suicide had support it could have introduced evidence not in consequently defense, the and issue the based on disappeared suicide would have from the case.” Although quotation may the above dictum, be treated as correctly expressly states law, the as was held in Creek (2d) more 192 Tenn. 241 S. 398. Woodard, 280, 397, W. alleged In this latter case, the declaration negligence driving various acts the automo riding, alleged bile in Mrs. which Creekmore was driving though she was that automobile at the not time, plea guilty filed a owner. Defendant not to this its being required afterwards, but so declaration, to do under provisions pleas. special of Code she Section 8767, filed by plaintiff, objection

At the trial cause, on judge offer trial Mrs. Creekmore refused to allow driving car, she was not evidence the effect that special plead in her because she had defense such pleas, Plain- Section 8767. filed in accordance with Code by judgment the Court tiff was affirmed recovered granted Appeals, although and, certiorari was Appeals Supreme judgment of Court, the the Court opinion Supreme written In Court’s affirmed. appears: following language Tomlinson, J., the easily simple “Implicit understood fact when words of Code Section is the general plea, in so issue invoked, code section is concerned, is far suit abolished, as that express plea must certain defendant set out relied on as a averments and denials facts defense.” (2d) 215 W.

Olins v. 31 Tenn. S. 346, Schockett, effect v. Woodard. the same as Creekmore Appeals opinion Court case, In this by (Eastern Section), Howard, J., written the followin g language appears: plead spe- not as defendants did Inasmuch “(9) contributory plaintiffs guilty cially were of required negligence 8767, under Code Section as is assignment the fifth of error. we have not considered Vogue, (2d) 284, 165 W. Hammett Tenn. S. v. 577.” plaintiff argued of since, is behalf the “It that,

It on prior object modifying the 8767, is of section statute, every plaintiff of matter to enable to be forewarned be relied and to defendant, of defense intended to on explicit require all of matters a to make defendant pleas implicit in otherwise be would defense which Supreme general in said Court as was issue”, & Insurance Prieto, Provident Life Accident Co. page (2d) page 264, 124, 159, 83 W. defend- S. at rely permitted Illinois on law ant should not be pleas. special in the because it was not included argument the enactment of that, before since Foreign Act in 1943 Uniform Judicial Notice Law plead prove have the Illinois defendant would had rely question permitted law in before could be it judicial right notice same, take the court to proof, being foreign but substitute cannot laws supply pleading. the absence of argument disposed adopt be but

We would plaintiff’s in as set out action, for the fact that cause upon grounded stat Illinois her is itself declaration, by wrong permits recovery in death ute which cases of being Chapter Ill. Statutes act, ful Eevised same copied in Since full in declaration. authority recovery this law Illinois, under seeks a Legislature we state, which was enacted recovery right be her must held to barred think proof establishes what be held to be unless would brought authority of action if suit been under cause had pointed As itself. the state Illinois, of that statute plaintiff’s instant declaration does above, out case allege from that the deceased free even contribu tory negligence acci or contributed to the which caused place that at the time and of said involved, dent nor here exercising care. view of this fatal due In he was action, allegations of declaration, from the omission that if same had filed it is been the state we clear think probably It it have been demurrable. Illinois, would Tennessee, because, would not been in have demurrable the attention until the Illinois law was called to judicial permit of same, take court so as notice properly indulged presump- the court would have in subject as tion law the was same that the Illinois judge’s the law of Tennessee. But, trial, at the when, n attentionwas called application Illinois and the law pointed out, Illinois same, as embodied in decisions, judicial knowledge should and he have taken that law for sustained motion defendant’s a directed verdict. Supreme gone applica- Our own has in Court so far foreign tion of embodied an statute law in Arkansas granting right recovery an administrator by wrongful death to hold that act, such law can control recovery proceeds suit such administra- by requiring according distributed that same be tor, laws Arkansas descent notwith- distribution, standing the fact deceased was a resident of Mississippi where the descent laws of and distribution were different. Hartman v. Duke, (2d) 221. S. W. opinion assignment

In our first error should sustained. question

The fifth last raised defendant’s assignments assign- of error in this embodied Court is 8. It 5, 7, ments is there no evidence to judgment sustain the verdict this cause; or, stated differently, that defendant’s motion for a directed verdict granted, independent have been should of whether .or not applied Illinois law the case. Plaintiff’s position permitted is, that this course, Court testimony weigh testimony, the of the and that since the the effect was to that all of witness, Gerald Galbreath, resulting west the from the collision was on debris the point road, the from the of hand side of view left by gouge the marks defendant’s that caused driver, began at center line the and con- Pontiac automobile the jury the was authorized find tinued the west thereof, point impact a the as fact the was on west side that highway, from that that fact infer the driver guilty negligence, was vehicle and that the defendant’s notwithstanding jury’s finding is conclusive, all eye including witnesses, witnesses, two other testified contrary. undertake Plaintiff’s counsel bolster position pointing out efforts certain that were testimony impeach the of some of defendant’s witnesses, jury presumed to must be have discredited position testmiony. be This would their physical for the circumstance facts sound, but undisputed testimony, viewing established same light plaintiff, most favorable to contradict the oral testimony of witness, Galbreath. physical controlling

Established facts over are testimony impossible to when it is reconcile direct testimony. physical direct Nashville, with the C. facts App. & Justice, 70-71; St. L. Railroad v. Tenn. Civ. App. Co., Oliver Union Transfer 17 Tenn. 694, 696-697, (2d) Harris v. 478; Miller, 71 S. W. (2d) S. W. 7.

335, 144 impossible testimony it is That to reconcile the wit- physical estab- Galbreath, Gerald with facts is ness, testimony Captain Manning Sam lished Department Memphis was an Police who introduced as expert expert by plaintiff. witness, As witness such heavy light come that when vehicle testified and a together, involved such were under circumstances heavy never its case, the instant vehicle ceases np movement, but the and settle forward vehicles rear pave- one beneath is mashed into down before the requires He also time. ment, and that an interval of traveling a one-tenth of second vehicle testified that undisputed per thirty (the which the miles hour rate at traveling), testimony will defendant’s vehicle shows testimony Taking, of 4.4 feet. therefore, travel demonstrated value, at its face witness, Galbreath, certainty point impact that the could a mathematical left side not been on west defendant’s hand have highway. Expert testimony may dispel infer be used might be drawn from circum ences which otherwise proof. v. Quaker other Oats established Co. stances (2d) App. 232 282; 33 Tenn. W. Tennessee Davis, 373, S. App. Valley Co-op. 286 Tenn. W. Electric S. Harmon, v. Supreme (2d) Court, Feb. certiorari denied 593, 3,1956.

Assignments 8 4, 7, and are therefore 5, error sustained. assignments 2, 3, and 6, result is that error

The net assignments error 1, 4, 7, and 9 are overruled, sustaining from these sustained. It follows our are assignments on either or both two that, of error judge announced, trial should hereinabove theories granted motion defendant a directed have accordingly, reversed and dis- The cause is, verdict. missed. adjudged against plaintiff,

The are costs as defend- ant in error in this Court.

Avery, (W. S.), Carney, P. J. J., concur.

On Petition to Rehear. petition BEJACH, J. In her rehear, this plants cause, defendant-in-error Court, in this proposition herself on the that, because the memorandum applied authorities from which this Court deduced and the law of the State of Illinois case,— facts this copy attorney of which memorandum ad- open mitted in court had that he received at or before one of the former cause, trials this incor- not —-was porated exceptions bill of nor otherwise made a part of the record cause, Court could properly same, consider therefore this Court had authority apply no the Illinois law. petition Cosmopolitan rehear cites relies

Life Insurance Co. Woodard, v. 394; Steele Kennedy Kennedy, 75; v. 52 Tenn. v. Davis, Tenn. Shelby 737; 747; v. 71 Tenn. Burch, J ones Co. Bickford, 102 395, 772; Tenn. 52 S. 406, W. Burkett v. 193 Burkett, (2d) 245 165, Tenn. 185; Smithson, S. W. Frierson v. App. (2d) Tenn. 591, 113 W. Brodie Miller, S. (2d) 316, 143 S. W. as for authorities proposition. amply support propo this These eases the exceptions law that sition of bill of not a can be altered nor to in added this nor in the Court, even lower court expiration after of the term. in Indeed, Court, this opinion February applied principle its filed that 22,1956, suggestion it of law when denied the of diminution of purpose bringing record for of before this Court (cid:127)which, special incor- requests had not been of defendant exceptions. porated bill in the of fallacy position we plaintiff’s however, of that is, necessary of this memorandum that not consider do incorporated of in the hill been should have authorities part a exceptions, as record, of or otherwise prerequisite of this Court same consideration consequent application em- of the of law Illinois plaintiff’s facts When to the of case. in same bodied open attorney he court had in that received admitted question, copy that memorandum authorities required prerequisite as to de- notice established the right rely brief, on same. In his and to a fendant’s argument before this in the oral considerable extent attorney plaintiff’s contended that defendant Court, rely permitted Illinois, nor the law could not apply presented because, of this as case, same to facts lower had had no notice court, the trial required by to do, so Section intention defendant’s Supplement It to the Code Tennessee. 9773.7, plaintiff’s attorney, as this Court contention of only not he contention, no understood his had had any showing that the notice, also, absence but, such exceptions given, such had notice been the bill right precluded defendant defendant’s or counsel judge having applied put trial in error meet case. To Illinois law to facts conten- attorney, under- counsel for defendant tion of suggest record, took diminution of the have bring up of certiorari to issue the writ one this Court wayside exception the two bills had been both of mistrials, after each of court two former filed in the lower exception wayside he claimed would bills —which establish, reqnired by aas Section fact that notice Supplement had 9773.7, Code Tennessee to the of attorney given by copy delivering plaintiff’s been a authorities the memorandum of relied on to establish the common law of Jnst fact wonld Illinois. how that appear wayside exceptions brought if said bills of were up to this cross Court, whether from examination witnesses or state- trials, at one both said former during one other trials, ment of counsel or of said judge statement the trial course of trial otherwise, one or the other of said was not trials, certainly, but stated; was contention of defendant’s wayside exception counsel if bills of were that said brought they answer the would meet and Court, objection notice that no such counsel given. that connection, had In counsel been defendant’s only object bringing went far as state so that the wayside exception up that said bills to establish question plain- given, if notice been and that had copy simply fact a tiff’s counsel that would admit as memorandum been authorities referred had suggestion of the delivered to of diminution him, unnecessary. Thereupon, plaintiff’s record would be argument attorney open and before the court, concluded, admitted had been as in this Court case attorney defendant’s he from fact had received copy as but Illinois cases stated, the memorandum of any make differ- would or could he denied that that fact appellant rights in this of defendant Court. to the ence right Evidently, attor- of defendant’s that denial upon predicated rely ney Court, was in this on same petition to rehear, in the advanced the contention now of authorities was said memorandum because viz., incorporated exceptions not the bill in of nor otherwise part attorney record, of defendant’s should permitted rely be this Court. on same especially

The members this Court, opinion, just author of this state are as reluctant to language making plain exact is used the admission as language tiff's but we do the exact counsel, not consider by plaintiff’s used counsel it to to be material. Suffice say, argued day on the that, Court, this case was in this by preliminary to wit, November 1955, in consultation they members of this were in the unanimous Court, opinion plaintiff’s attorney by that the admission made unnecessary suggestion had rendered diminution purpose bringing up the record for the either or both wayside exception. bills this Likewise, opinion unanimous of the members of this Court opinion day consultation before on the was filed 22nd February, opinion 1956. is Court, Such still this and we do not now consider it material whether the wayside exception bills of would or would not in fact presentation disclose the memorandum of the of author attorney. ities, as contended defendant’s. materiality by plaintiff’s attorney, of the admission made regardless par Court, as viewed is that, language phrased, ticular in which the admission was required established as a fact the notice Section Supplement 9773.7, Code of had Tennessee, given right been and that defendant’s to have the trial judicial court and Court take notice Illinois Supple law been 9773.7, had established. Section ment to the Code of Tennessee follows: — Any “9773.7. Evidence thereof notice. after party may present any also the trail court admis- party sible evidence enable laws, such but, jurisdiction to offer of the law in evidence another judicial toor ask that be notice thereof, taken reason- given able parties notice shall the adverse pleadings (Emphasis either in the or otherwise.” ours.) pur

As we construce this Code Section, its pose prevent any party being to a suit law from by surprise by having party, taken an adverse without previous present to notice, trial law from court another jurisdiction judicial and have the trial court take notice foreign pleading of same. In our of situation, view the of necessary, law is not now where notice of the reasonable rely foreign given intention to such in on law has been any appropriate although pleading manner, of same is expressly by opinion, also authorized statute. In the our delivery plaintiff’s attorney of the memorandum Illinois either the cases at first or second trial of cause, constituted, “reasonable the head notice”, under Certainly, plaintiff’s “or otherwise”. of, counsel could thereafter contend that had been taken surprise. attorney right reference

With to question, to make in client admission and bind his thereby, there can Hammon Miller, doubt. v. no Utley 458, Tenn. 462; Louisville & N. R. R., App., Tenn. 61 S. W. Ch. 242, 84; Fuller v. Jackson, duty propriety 62 S. W. 274. With reference to the - making quote of counsel from admission, said we the case of Bank National Pemiscot Co. v. Central State Mr. 78, wherein 132 Tenn. 177 S. W.

Bank, 152, 168, Supreme speaking Williams, for the Justice Cole Samuel Court, said: is chancellor

“The the decree result that justice that able official must be but reversed; explained again the bill com- it should be that plaint, put court, to this as construed and counsel filed, from the bill as as it differed drafted may have in the chancellor, considered been fairly The course of trial. counsel thus court of phasing appeal com- for test is most the case ’’ mendable. challenges petition

Plaintiff’s rehear also February part opinion of this Court filed judge granted trial have which holds should in favor whether verdict defendant directed applied to be case State law be that of of Tennessee. State The basis Illinois or that prin ruling point well our on that settled physical ciple of law “Established con that, facts are testimony impossible trolling when over direct testimony.” physical with the direct reconcile the facts principle applying law facts of In this of the the opinion the was of this it and Court that case, instant plaintiff’s testimony witness, Galbreath, of Gerald the undisputed physi completely the irreconcilable with was disregarded. therefore, have and been should, facts, cal testimony the was effect that all of of Galbreath resulting from collision the the was on west debris the point the of road, of from of view left hand side the by gouge the driver, that marks and caused defendant’s began the line at center and Pontiac automobile the testimony, continued the From west thereof. that argued jury was that as fact, the was find authorized to impact point and find, did so that of west the was on the highway, finding jury side of the the from which of fact, was further authorized to infer and infer did that the guilty negligence driver of vehicle defendant’s was proximately plaintiff’s which the intes- caused death Viewing testimony, light tate. however, the most plaintiff, favorable to the contentions and is it was opinion physical the of this Court the facts demon- that beyond peradventure point strated that the a doubt impact highway, was not on the west on side but jury the east side, that, therefore, the entitled to find as fact the occurred on that collision highway, the west side the that driver defendant’s guilty negligence was therefore which caused the death physical intestate. The facts as established undisputed the evidence in this cause that the were, weighing tractor-trailer unit of about 52,000 defendant, pounds, sharply with its front wheels locked and turned impact, pushed the left result of the the Pontiac weighed automobile driven deceased, 4,000 about pounds, northwestwardly highway point across the where two vehicles came to rest, pushing dug gouge movement, out Pontiac marks highway. Taking testimony of witness Galbreath plain- to be true, which view most favorable gouge tiff, the marks Pontiac automobile began highway. Taking the center line that to assuming gouge true, marks did not highway, extend to the east of the center of the physical point facts nevertheless that demonstrate impact of the must two vehicles east have been required highway. necessity, an

side of the Of interval gouge marks the were time after collision before the by part the the tractor-trailer Pontiac, the front pushed must the east have it from side somewhere highway highway before the the back to center of the gouge begin the marks could at the center. physical are

The rule of that facts “Established law, recognized testimony”, controlling over direct has been applied in Tennessee several eases. In & R. the L. R. Co. case of C. St. Nashville, plaintiff the Justice, 5 Tenn. Civ. sued railroad she to recover the value and its contents which of a trunk by damaged seeping in of molasses while claimed were the company. custody She trunk was in railroad the the judgment court, the but on had recovered lower appeal Appeals, Civil the trunk, itself, Court exhibit, had an was examined been made reversing judgment court, Mr. court. In of the lower Higgins, speaking Appeals, Court of Civil Justice said: that

“The below was contention spilled upon her trunk while in the was molasses railway permeated company care of joints thus interior thereof, cracks reached the spoiled rail- the contents. insistence company way primarily contention of impossible and that its an one, Mrs. Justice was improbability untruthfulness was estab- or absolute physical This condition of the trunk. lished and was trunk was the lower court certified before part of the record. It insisted court as a company railway an examination originally trunk the fluid on demonstrates that was the inside and it could have from that not entered the exterior. firmly appel

“It seems be now established that may disregard impossible palpably late courts improbable testimony no and treat it as evidence: Ting] [11 [Quock S., 140 733], v. U. U. 417 S. S. Ct. plaintiff’s 501. L. Ed. Tested ex rule, planation seeping fluid from outside must This was be discredited. case demon and is strably impossible, proceed no could court judgment satisfactorily under the circumstances.” & Nashville, C. L. R. R. St. 5 Tenn. Justice, Co. App. 69, Civ. 70-71.

In Oliver v. Union Transfer Co., (2d) closely S. W. the facts were much more analogous to involved the facts in the instant case. In plaintiff, damages that case, Mrs. for Oliver, sued for personal injuries riding received while she was as passenger in defendant’s bus when it was turned over highway. side of into a ditch The theory, to as which and other she witnesses on behalf her traveling testified, that was the bus was at the rate of passing 35 to 40 miles an hour while another automobile, speed, suddenly the bus not that did check its theory turned over into ditch. The defendant’s was practically the bus at a standstill on the side or shoulder the road with the outside wheels more than edge of two from the the shoulder, feet when shoulder suddenly sustaining caved and turned the over. bus In testimony and her witnesses, Crownover, speaking Tennessee Middle Section

J., Appeals, Court of said: pas- damaged,

“The bus was not and the other consequence. injuries any sengers suffered no the bus evidence shows that uncontradicted right angles plow into over turned and did not uncontradicting taking evidence ditch; hence, guilty physical we think the defendant was facts, proximately negligence no contributed accident. physical the bus facts show that could

“The any- traveling or have 35 40 hour, been or miles an thing speed, as like it turned over, that rate when plow embankment, it into or did not the ditch off in for shoulder of the or caved road broken only length These distance of bus. a happened things bus been could not had the have speed. traveling at that rate “ alleged inherently impos- ‘A statement facts absolutely sible variance with well-established universally recognized physical laws will required theory supply evidence, scintilla of upon inherently impossible based a statement certainly supply alleged facts it.’ Louisville cannot Ky. Lally, 348, 168 182 187, Water Co. v. S. W. 186, R. 300. 1916D, L. A. ** *

‘‘ ‘ required give Courts are not credence falsify would laws well-known statement Bishop, nature.’ v. 171 Mo. 71 110, Weltmer W. S. Error 584, 65 L. R. A. Writ of 169, Dismissed 167, 24 48 Ed. 560, U. Ct. L. 848, in 191 S. 302. S.

“ testimony by plaintiff ‘When tlae introduced physical surroundings shown tbe facts and absolutely inherently improb- or when is untrue, it so person accept as that no able reasonable it can possible, Judge true the Circuit take should ' jury, notwithstanding case from the . oral statements tending right to show action.’ C. & Nashville, [Co.] App. St. L. R. Justice, v. Tenn. Civ. 69.

###### physical “In view of the facts and the other evi- company dence we adduced, cannot see that the bus guilty negligence or that it failed to observe the highest degree imposed of care . as a common carrier.” Oliver v. Union Transfer Co., 17 Tenn. (2d) 694, S. 698-699,71 W. 480-481. 478, App. Harris Miller,

In 332, 335, S. W. although (2d) physical case the facts were testimony, Appeals' reconciled with the oral Court of n Section) speaking (Eastern through Portrum, J., said:' physical controlling “Established facts are over testimony impossible it is direct when to reconcile physical testimony, with direct facts but where testimony as whole a can reconciled then it duty physical of the it the reconcile court facts testimony disregard with the direct and not the direct ” testimony impeached testimony. as argued testimony Captain But it that the Sam- Manning Memphis Department, introduced Police expert plaintiff, necessary an witness was as physical facts as above and that the. stated, establish disregard jury just testimony was entitled his 408 except testimony

disregarded the witnesses all petition cited in the are Numerous authorities Galbreath. general proposition “The rule that, for the to rehear jury opinion expert’s is for anof that the value a char- of this case is never conclusive determine and 20 Am. Jur. Among are, the authorities cited acter.” 572, S., Evidence, 32 C. J. Sec. Evidence; 1208, Sec. Co., Inc., Clinton, v. Gas Service Act-O-Lane the cases of (2d) East App. 795, 799; 245 450, S. W. 442, 35 Tenn. App. 270 Peltz, Tenn. Co. v. Gas Tennessee Natural Insurance Co. v. (2d) National American 603; 591, S. W. (2d) App. 1081; W. 222, 74 227, 1078, S. 18 Tenn. Smith, Ry. 202, 187 Tenn. Jackson, & L. Co. v. St. C. Nashville, v. (2d) Oil Co. La. 122; 116, Standard 213 W. S. 217, (2d) App. 69; 94 661, 671-672, S. W. 19 Tenn. Roach, Duling W. Burnett, S. (2d) 294. plain fallacy contention of this independent of the the fact that, lies in counsel

tiff’s Manning, testimony Captain both lower court judicial notice of take matters about Court could Captain Manning testimony he testified. The traveling one-tenth that in second vehicle per miles This hour will travel four and four-tenth feet. is but matter mathematical calculation which capable certainly making. Court is testi Other facts by Captain merely Manning embody applica fied to tion Physics, may of the laws of of which this take Court judicial notice. subject judicial

On the on from treatise notice, beginning Evidence in page 20 Am. Jur. volume continuing through, following page ex- 133, the cerpts quoted: are many however,

“There are, facts which need they proved, judicially be since are noticed jury. court and Judicial notice of such facts tabes place proof equal displaces It is force. thing. evidence since it stands for the same Judicial may knowledge cognizance of defined as the be judge legal certain facts which a under rules procedure may properly or take act otherwise, upon proof they already without because are known knowledge judge him or because that a has, or is to have assumed virtue his office.” p. 20 Am. Jur. 47.

“Judicial will be taken notice well established knowledge though facts of plead- common even ings allegations contrary. contain to the Such mat- knowledge may ters of common receive the same recognition, original appel- in the courts both jurisdiction, they late would if have received formally proved part the record. practical appeal, This rule is of value in the law of missing testimony may links in he often supplied judicial knowledge.” 20 Am. 54. Jur. p. required “Proof is never fact which the judicial court bound take notice. The courts repeatedly concerning refuse to hear evidence mat- they judicial ters of which take notice. On the other general properly hand, rule, when a fact subject judicial notice, evidence cannot received deny proceeds upon rule its existence. This contradictory premise obvious to admit such indisputable anomaly of create an evidence would p. being disputed.” Jur. 54. Am. fact appellate the have, courts “In several instances upon attempting any the rule formulate without ignored subject, recognized have facts which been the failure or the It seems that trial court. clear a fact notice of trial court to refusal of the take higher prevent brought it not does the court before giving p. 55. 20 Am. Jur. from effect thereto.” ordinarily judicial the take will notice “Courts operation of nature’s effect of natural laws and and powers the with limitation that such and forces, laws is natural which are notice limited those action and in their occurrence, universal invariable ’’ p. knowledge. 20 Am. Jur. 92. of common also taken of notice will the rules “Judicial p. 113. arithmetic.” Am. Jur. commonly matters notice is taken of and

“Judicial generally and known with reference automobiles p. operation.” 20 Am. Jur. 130. their judicial general of the rules take notice “Courts operation powers, governing of mechanical general recognize use, mechanical devices in specific efficiency, use device, its nature ’’ construction. method of its nature pp. 131-132. Am. Jur. petition suggestion rehear,

The being eye gouge made, witness saw marks no since they readily just jury have inferred that could place began came rest where automobiles at the highway, went back towards tbe center tbe to or they began highway than of the rather at the center rest, and extended to came to the automobiles where require so naive and no com- unreasonable as to further opinion. ment in this prayer petition “that to rehear the motion plaintiff-in-error suggest diminution of granted abundantly

record be so as to make it clear granting the record that the motion such would supply plaintiff-in-error facts which seeks to omitted opinion establish”, is, in the of this without merit. court, pointed As out immaterial whether above, wayside exception bills of filed with connection former or include trials do do not cause, indicating memorandum of law of Illinois, authorities wayside exception or even whether said bills establish as a fact such memorandum of authorities attorney. This was Court is delivered to only required by knowing interested notice Supplement Code Tennes- Section 9773.7, given; by plaintiff’s admission see, and the already has counsel established that fact. petition opinion Court,

In the rehear accordingly denied. without merit and same Avery, Carney, (W. S.), P. concur. J., J.

Case Details

Case Name: Gordon's Transports, Inc. v. Bailey

Court Name: Court of Appeals of Tennessee

Date Published: Feb 22, 1956

Citation: 294 S.W.2d 313

Court Abbreviation: Tenn. Ct. App.