419 S.W.2d 189 | Tenn. Ct. App. | 1967
In this cause, Mrs. Vivian Keith, who was plaintiff in the lower court, .appeals .in error from, á judgment of dismissal on granting of defendant’s motion ■for a peremptory instruction to the. jury. The peremp:-tory instruction was granted by the court in ■ connection with arid at the time of defendant’s motion for new trial, after there had been a trial of the cause and a mistrial entered because the jury was unable to agree. Two.questions are ■ presented for disposition'by this Court, viz., first, whether or not the trial judge could properly grant defendant’s motion for peremptory instruction after there had been a mistrial of the case, and, second, whether or not the granting, of the peremptory instruction was, itself, proper.
. In this opinion, the parties will be styled, as .in the lower court, plaintiff and defendant, or called by their respective -names. . - .
..■^Plaintiff-, a,guest rider in defendant’s automobile, sued the defendant for severe and permanent injuries resulting from an accident which happened April..5, 1965. at
Defendant’s principal defense is based on the contention that defendant was intoxicated at the time of the accident, and that plaintiff; was charged with knowledge of Ms condition at that time so as to bar her right of recovery in this case.
Plaintiff and defendant were both alcoholics. They had each been attending the Alcoholic Rehabilitation Unit Center at Tennessee Psychiatric Hospital in Memphis for their alcoholic problems. They met at that institution. Plaintiff had been taking Librium (Tranquilizer) pills, as she testified, on the advice of the physicians at the hospital. Ordinarily, she took about four of these pills per day, but on the day of the accident, she had taken six or seven, and had eaten very little.
At the time of the accident, defendant was an automobile salesman for Hull-Dobbs. He was divorced from his wife. Plaintiff, a woman 34 years old, was married, but separated from her husband. She had four children, the’ oldest of whom was 10 years old. Defendant died a short time- before the trial, but the cause was revived against his administrator, Ross P. Houpt. His discovery
On the day of the accident, defendant came by plaintiff’s apartment at Thomas Street and Jackson Avenne, Memphis, in the evening, in his automobile. They drove north on Thomas Street (Highway 51) toward Frayser. Plaintiff testified that defendant, so far as she could tell, had not had anything alcoholic to drink at the time he came by her apartment. The defendant testified that he may have had a drink before he arrived at plaintiff’s apartment. A partly consumed bottle of whiskey was found in his car after the accident, but he said he had forgotten about its being there.
After leaving plaintiff’s apartment, defendant stopped at a liquor store where he bought a half pint of whiskey. He and plaintiff then went to a cafe or beer parlor located about one-fourth mile from the liquor store, where plaintiff had two beers and defendant according to plaintiff, had one drink of whiskey out of the recently purchased half pint bottle. Plaintiff testified that she remembered nothing from the time she and defendant left the cafe, which was sometime between 7:30 P.M. and 8:30 P.M., and she could not account for anything' that occurred thereafter until sometime after the accident. The accident occurred at about 11:10 P.M., some eight miles away from this cafe. The testimony of defendant, taken by discovery deposition, furnishes the only proof in the record to show what the parties did and where they went after plaintiff lost her memory. Defendant testified that he had two drinks of whiskey at the cafe and that plaintiff had two beers. He said they left the cafe and drove to Albert’s Motel on Highway 51 North, where they arrived about 9:00 P.M., and where they stayed for about
“Q. You were not intoxicated when this accident happened, were you?
A. Not to the best of my knowledge, no sir.”
Both of the patrolmen, C. L. Hurt and William T. Ed-monds, testified that defendant’s automobile was weaving back and forth across Southern Avenue between the time he turned into Southern at Hollywood Street, up to the time his automobile collided with the concrete post in the viaduct which carries East Parkway across Southern Avenue.
At the trial, after considerable argument, the trial judge overruled defendant’s motion for a peremptory instruction and submitted the case to the jury, but the jury was unable to agree, and a mistrial was entered. When defendant moved for a new trial, however, the judge reconsidered and granted the motion for a peremptory instruction which dismissed plaintiff’s suit. Plaintiff excepted, prayed and perfected her appeal in error to the Court of Appeals. Plaintiff moved for a new trial, which motion was overruled.
It is the contention of counsel for plaintiff that after a mistrial had been entered in the case at bar, the only remedy available to defendant was to file a wayside bill of exceptions, and thereby preserve for correction on a later appeal, the alleged error that his motion for a peremptory instruction should have been granted. Counsel for plaintiff cites in support of that contention Barnes v. Noel, 131 Tenn. 126, 174 S.W. 276; Oliver Mfg. Co. v. Slimp, 139 Tenn. 297, 202 S.W. 60; and Dykes v. Meighan Construction Co., 205 Tenn. 175, 326 S.W.2d 135. It is true that in all three of these cases wayside bills of exception were involved. In the case of Barnes v. Noel, however, Mr. Justice Green (later Chief Justice), speaking for the Supreme Court, said:
“The propriety of a peremptory instruction given or the refusal of such an instruction can only be de- . termined by an examination of the evidence preserved in a bill of exceptions.
If on motion for a new trial the circuit judge concludes he erred in directing a verdict, it is his duty to set that verdict aside and award another hearing of the . case. If on motion for a new trial he concludes he erred in not directing a verdict, under our practice, it would be his duty to enter an order correcting the verdict rendered to conform to the undisputed evidence.
*429 ' The office of a motion for a new trial is not alone to secure another hearing, but to present the errors complained of for correction, "if possible, without another hearing. 14 Enc. Pl. & Pr. 846; 2 Elliott on General Pr. [sec.] 987, cited and approved in Railroad [Co.] v. Johnson, 114 Tenn. 632, 88 S.W. 169.” Barnes v. Noel, 131 Tenn. 130-131, 174 S.W. 277.
Oliver v. Slimp Mfg. Co., 139 Tenn. 297, 202 S.W. 60, is in harmony with the above quotation. ..
It is our conclusion that so far as the procedural question is concerned, the trial judge was correct, and that question must be answered adversely to the contention of plaintiff, in the instant case.
We take up next, on its merits, the question of whether the trial judge ruled correctly, when on defendant’s motion for a new trial, he undertook to correct what he concluded had been an error, and granted defendant’s motion for a directed verdict. The fact that the trial judge was enough doubtful about the matter to overrule the motion for directed verdict indicates to some extent, at least, that reasonable minds might differ, as to whether or not such motion should be granted, and the subsequent fact that the jury to whom the case was submitted did in fact disagree, clearly indicates that reasonable minds did disagree.
In our opinion, both the question of whether defendant, at- the time of the accident, was intoxicated to the extent that he. was incapable of properly handling his auto.mobile, and the question of whether or not plaintiff was chargeable with knowledge of that condition, if it .did exist,, are factual questions which must, ultimately be answered by a jury verdict.
“The evidence tends to show negligence on the part of both of the drivers, but the negligence of one or both of them, while it is a factor, is not the primary factor to consider. The main issue in this case is the proximate causation of the accident; for where there is an accident and one or both of the parties are negligent the issue of proximate causation is usually for the jury. Standridge v. Godsey, 189 Tenn. 522, 226 S.W.2d 277 (1949); Thompson v. Jarrett, 44 Tenn.App. 513, 315 S.W.2d 537 (1957); Colwell v. Jones, 48 Tenn.App. 353, 346 S.W.2d 450 (1960); Chandler v. Nolen, 50 Tenn. App. 49, 359 S.W.2d 591 (1961). It was, then, proper for the trial court to submit the consideration of proximate causation to the jury.” Barr v. Charley, 215 Tenn. 452, 387 S.W.2d 617.
The facts in the case of Barr v. Charley were, in many respects, closely analogous to those of the case at bar. In Barr v. Charley, plaintiff’s deceased was not only driving while under the influence of alcoholic beverages, but was also exceeding the speed limit, and was, therefore, necessarily guilty of negligence. Also, in that case, the driver collided with a stationary object, a parked