Sadler v. Draper

MARIE J. SADLER, Administratrix, v. PAUL 326 S. W.

DRAPER. 148. January 12,

Middle Section. 1959.

Rehearing denied March 1959. by Supreme July 27,

Certiorari Denied Court 1959.

(1) Goodpasture, Carpenter, Dale & and Wirt Woods Courtney, Sadler, Marie J. Admx. Jr., for Nashville, Cochran, & Whal-

Martin Carmack John D. Cochran, Draper. ley, Joseph Martin, Nashville, for Paul and Jr., by brought PELTS, Paul Dra- This was action J. an personal injuries per damages from sustained by being by B. owned E. automobile, struck a Ford employee charge in and Sadler, Foxall, of his Charles by brought against Malcolm Suit driven Crenshaw. was all three of and the was revived them, died, Sadler case against his administratrix, Mrs. Marie J. Sadler.1 doing Company, was

Sadler, as Sadler Motor business open operating or an lot, in east Nashville used car kept cars. Foxall and and dealt used lot where he neighborhood lived Crenshaw, men, colored by regularly employed Sad- lot, Foxall was there this and porter take and cars, as a and to wash and care ler permitted and another of them to use first one then Avas go his to forth home work. to back and from acquired trade this car in a with one Ford

Sadler registration Gregory 30, 1950, and on December changed name when acci- to Sadler’s it had been happened. order, The locks out car’s were dent ignition locked, it its nor could be and could neither doors anyone guard by lot. To it from the be taken charge his it, drove home Foxall took theft, kept (Dec. 30), night it in his let control until he it. have Crenshaw Farmer, a man named has since married -some Mrs.- Sadler in this as Mrs. referred to record Farmer.

times happened January

The accident about 6:80 P.M. Draper parked 1951. Plaintiff his had his car front of drug on the side of store south Woodland Street. He put had some ice cream and Coca Colas the trunk of closing standing his and was car, behind it, when car, by car, Ford driven eastward on Woodland Street asleep, drunk and Crenshaw, swerved struck side, plaintiff body his car, crushed between the two cars. injuries charged

He in his declaration that his were negligence caused combined all the defendants; and, several counts, sued Sadler master for the negligence entrusting servant Fosall in the car knowing Crenshaw, reckless, unfit, habitual negli- drunkard, and without driver’s for license; and gence agent, entrusting Sadler, of or of his the car knowing he Fosall, unfit and likewise associated with others like character, and that the car, endanger highway. their hands, would on others made no Crenshaw defense. Fosall and Mrs. Sadler, represented by joint plea the same counsel, filed a not guilty, separate pleas, response also and to the Trial upon plaintiff’s requiring order, Court’s motion, de- plead specially, fendants to their defenses under our 20-921). (T. A. statute C. sec. judgment plaintiff against a verdict

There was and for $85,000. all for the defendants Crenshaw and Foxall acquiesced, sought judgment; neither a review of the and appealed assigned Mrs. alone in error, Sadler and has Judge errors. She first that the Trial insists should have plaintiff’s proof, a verdict for her directed at close of proof, and also at close of all because there was wrong charge for the as master no evidence to Sadler sued for. Draper reply, Mrs. cannot Sadler

In contends (1) waived her mo- she this because insistence, maintain plaintiff’s at the close tion a directed verdict made ostensibly only proof, adducing Foxall’s, evidence, her really and did renew defense, for her own, but (2) proof; there all because motion at the end charge ample Sadler as master and evidence to Mrs. support his administratrix, the verdict Sadler. be sustained. The bill must think contention

We exceptions Foxall each Mrs. shows that Sadler at the close of for a directed verdict moved Judge hearing arguments, proof. Trial over- After Thereupon, for Mrs. Sadler counsel these motions. ruled introduce rested and would that she and Foxall stated upon calling only; himself behalf said: first witness counsel please, your I Carpenter: Honor offer If

“Mr. Fox- in behalf Charles and all others this witness only.” all brother called, witnesses, Sadler’s then

Counsel manager Sadler), employee (Earl of his used employee Jones), (Jerry Foxall, defendant car lot disprove master- effort was to both Their others. and alleged, negligence thus to relation servant as discharge where, Sadler; Mrs. Foxall and both wrong of another for the is sued as master one here, necessarily discharge dis the servant of servant, Bayless, charges Loveman Co. the master. 841. S. W.

307, 315, bring When these were witnesses cross-examined ont relation between master-servant objected she had Foxall, Sadler and Mrs. Sadler could and she rested, her, the case had been closed as assigns be affected and she now evidence; upon error so from evidence, admission of elicited part Foxall, that him automobile as Sadler furnished charge employment, of his contract that he took guard against this This Ford ear for Sadler to theft. assignment (No. II) is later referred to.

At the all the Fox- close of counsel evidence, renewed motion, all’s but not Mrs. Sadler’s a directed motion, exceptions verdict. The bill that at close shows following cause occurred: your Carpenter: please, If “Mr. Honor I have up jury. matter to in the take absence

(Jury retires.) Motion please “If it at Court, the conclusion proof, Plaintiff’s made a motion to we have Mrs. [Mrs. Sadler]' your Farmer Honor overruled —which upon —which we relied in which stated we we would proof only introduce on no her behalf and that the proof be would introduced would be on behalf Foxall. Defendant your please, if now,

“We Honor renew our motion on Foxall for a directed ver- Defendant behalf of any being diet in cause, there no evidence or strongest light inference of evidence considered in its * * * available to- the Plaintiff re- verdict be [defendant] turned favor of the Plaintiff [plaintiff]. yonr please, the Defendant If Honor I argue don’t I know as need to that situation. It was argued fully in reference Foxall to at the conclusion proof. driving. of the He was not The car was not on It is shown here that mission. Foxall was a job— man that did his

Argument Continued— * * u* upon s0 we insist our motion toas the De- (Italics ours.) Foxall at time.” fendant appears It learned counsel for Mrs. Sadler intended rely not to renew her motion hut to on the one that had been made for her and overruled at the close proof, thereby any avoid adverse evidence adduced Apparently, Foxall. it was their view that de- they managing which were fense, for both Mrs. Sadler could be Foxall, divided, and the case as tried to her plaintiff’s proof as it at the him stood close proof, give as it at the stood end all the and thus her, any risk, without chance to succeed the defense made for him. rights think this is a mistaken

We view of the of de- fendants under motions directed verdicts. no While ease has been cited to us, we have been unable to any, dealing find in this with State the exact situation presented, applicable principle we think here is clear appear and well as will settled, from a consideration of governing rales direction of verdicts. A motion for a directed verdict, a demurrer like separating evidence, a common law device for law legal sufficiency in order test the fact, from pro- governing the two facts in evidence; and rules analogous many respects. are cedures, different, while (1898) Thayer’s Preliminary Evidence, Treatise on See Hopkins R., v. C. & St. L. 96 Tenn. 234-240; Nashville, R. Sands 354; 34 32 L. A. 409, 422, 447-458, 1029, S. W. 478; 108 Tenn. 64 Coleman Co., 1, 6, v. R. S. W. Southern 111 Tenn. 734. v. S. W. Bennett, analogies is that had One the defendant proof plaintiff’s not later, at the close of demur writing all had set forth admit the facts prove, every plaintiff’s which evidence tended to with may therefrom; inference while the defendant reasonable plaintiff’s the move for a directed verdict at close ruling, light, proof a as a but cannot claim such matter of point resting At then his own that without case. merely Judge’s motion invokes the Trial discretion, may he not all evidence closed demand a until the right. ruling as of practice rule of

This common law was well stated Gray Puget & Mr. Columbia Sound R. Justice Co. 1892, 144 202, 206, U. S. S. Hawthorne, 591, 592, Ct. follows: as 405, 406, 36 L. Ed. repeatedly request

“It has decided that a been upon ruling plain- a evidence introduced the the tiff is not entitled to cannot recover made be right, a matter as at close of defendant, unless evidence; and if the defendant, the whole at the resting close of and without evidence, requests ruling, his own and is such a case, refused assigned refusal cannot for error.” be Wigmore fully prac has Professor discussed directing verdicts law at common and has cor- tice rectly (9 stated it the form of these rules three Wigmore pp. [3rd 1940], on Evidence Ed. section 2496, 313-315):

“ opponent (1) place, In the first cannot claim right, ruling by judge, matter of if he proponent’s makes the motion at the close of the case resting in chief without then his own case. At that only point, invoking discretion; he is Court’s may until the entire evidence is closed demand right cases).” ruling (citing as of ‘‘ (2) place, opponent In next that the follows own, right by put gomg no later on to waives judge’s after refusal to rule proponent insufficiency of evidence at the close opponent proponent’s may The the chief. case of the whole therefore reneiv the motion at the close on is sides, case both entitled to the benefit the of ’’ ruling, if in his favor at that time. “ (3) Conversely, he cannot however, take advan- original tage judge’s the erroneous of refusal insufficiency at time of direct verdict the the (a) if he motion, first does not renew motion at (b) the close of all or if at time evidence, or ruling correctly final of the motion the refuses insufficiency; a verdict for for the is at order Court upon survey that of time entitled decide naturally survey evidence; and this renders whole any prior put error immaterial. This is sometimes ground upon waiver; of but it is rather a neces- discretionary sary consequence of nature and scope ruling.” limited of the first usually of “waiv is stated terms

The matter moving say They defendant, that in our cases. er” plaintiff’s proof, of at the for a directed verdict close by putting in his motion or waives rest, must then he of proof; at the renew the motion end that he must proof, must deter that it be it; and all the or he waives Railway & upon whole evidence. Nashville mined 700; Light 284, 99 W. 118 Tenn. S. Henderson, Co. v. 263 S. W. Smith, Gerber Co. John 974. of waiver or be stated whether the matter terms

So, thing: quoted, it comes to the same rules above verdict, directed cannot demand a defendant The if right, evidence”; of the whole at the close “unless in order to make such demand do, as he must rests, plaintiff’s is the evidence, at the close close of at the end he renews his motion as much so as where case, the evidence. of all only simple is situation where there

Thus, the may there are but it difficult where defendant, be one for a and one of them moves or more defendants two plaintiff’s at evidence. "While directed verdict the close governed practice statutes states is some weight authority at common court cases rules, application discharge supports rule for a law defendants at the close of one several Trial discretion the is addressed to the sound case according Judge, to circumstances of exercised the to be bearing in that the introduction further the mind case, against may supply such defect the case evidence defendant.

15 Champion v. authorities are: Sowell such Some Eng. Reprint (1838), 156, 2 Nev. & & El. 112 407, Ad. (1911), App. Capital v. Traction Co. 627; P. Vawter C.) (1912D) (D. Miller, Bates 1059; v. Cas. Ann. Cas. (2d) in the 645; cited Annota cases Cir., 1943, 133 F. (1912D) L. 48 A. R. 1061-1062, tions, Ann. Cas.

535-540. Champion, supra, J., Lord C. Denman,

In Sowell the rule thus: stated application Judge, a in the course of

“The or more of to direct a verdict for one several cause, strictly trespass discretion; defendants is merely regulated, not is to be and that discretion plaintiff’s no the fact that at close case prob- appears to affect but them, evidence any whether such will abilities arise before whole palpable closes. is so cause There evidence justice, evidence the de- a failure when the already defendant a cáse fense discloses ought acquitted, acquittal prematurely that such strongest place, is but never to where there take consequence cannot reason believe Eng. Reprint (112 156). follow” pp. sec. said: Trial, 314-315, In 53 Am. Jur., might given at the direction be such a “Whether postponed plaintiff’s case or should be close of one at time a of the whole case was until the close quite question, disputed it is well but now settled sound discretion the trial matter rests probability according to the to be court, exercised supplying the defects in the defendant’s caution should be exercised case. Great by directing separate a trial a court before verdict ought for one of tbe several and it co-defendants, clearly granted appears never to be that unless party is there no evidence affect the in whose favor it is made.’" important

In it is case, such Trial the Judge liability alleged to consider the of nature against the several For defendants. where instance, they charged separate independent are with of acts negligence, proof by so one cannot touch issue liability, may Judge properly of the other’s the Trial exercise discretion and verdict for other direct a plaintiff’s at the if close of there no evidence against to make a case him. charged where,

But as here, defendants are negligence joint liability, with concurrent and several such as that of master and servant for the servant’s wrong, improper Judge it would be the Trial exercise his discretion to direct a verdict for the master plaintiff’s proof, prob at the close of is a where there ability might proof that the servant’s case make out the against premature both himself and master; and such acquittal might complete the master result denial justice. City Hargis,

In 262, Knoxville 198 S. W. Sadler, relied on Mrs. hanging awning

husband struck was and killed building over the She sidewalk. sued the owner city, alleging liability independent grounds plaintiff’s proof each them. At close city This moved for directed verdict rested. renewed at the close of all motion treated as said: The evidence. Court Judge, the Trial before submit- statement of

“The jury, City ting its relies on the case put proof, the'plaintiff’s of motion made at the end City position exactly it would have the the same it its at of all had renewed motion the end been no evidence evidence, since it had introduced the and the evi- motion, a waiver of former effect the by touch the did not introduced dence Codefendant ours). liability” (Italics qtoestion City’s the the of disposed city if “re- the case of as the had was Thus, evidence”, motion end all the and its at the newed of ‘' by not the touch the evidence its co-defendant did since survey upon question liability”, City’s since, and the of no case, there of the at the was all close city, was the verdict evidence to a case make for it. directed Company may of Pikeville Fuel same be said

Much the App. also 232 S. W. Marsh, Tenn. by Marsh sued the Com- There, on Mrs. Sadler. relied injuries damages pany its truck driver for and negligence in alleged have caused driver’s been the plaintiff overturning in which and other the truck riding place employees their of work to were from the Company its an officer of the and Plaintiff homes. was driver; it was of truck and foreman control its such control his failure to exercise over held that right sue. the accident barred driver caused Company proof plaintiff’s defendant close At the overruled, verdict, its motion a directed moved as waived, treated rested. This motion was proof. but as renewed at conclusion all Tlie Court said: clearly think

“We that it was both understood plaintiff, Court and Counsel for the defendant that its motion intended embrace entire proceedings, effectively as at the con renewed if (italics proof” ours) (34 App. clusion all (2d) 792). 89, 232 S. W. Hargis it is

Thus, that in seen, both cases—the of these upon case and the Court, Marsh case—the record it, before treated motion, defendant’s made and over- ruled at close case, as renewed at the disposed upon all evidence, close of motion survey at the whole evidence case. close supports neither of cases So, these Mrs. claim Sadler’s rely can on she now her made motion, and overruled proof at close the renewed at the proof, end all and have the as her the tried to case upon partial view of at the evidence—or stood as plaintiff’s proof. the end put Judge seeking is

Since she to the Trial sustaining for not verdict, error her motion for a directed upon affirmatively, upon the burden her to show the proper record, her motion was made at time— proof improperly at the of all renewed end —and supra, overruled. 150 John Gerber Co. v. Tenn. Smith, 261, 263 S. W. 975. think to We the record fails show this and she must be held have her waived motion.

But if we are for Mrs. mistaken, if, insisted quoted Sadler, statements of her counsel above are having “effectively taken as her be motion renewed” proof, at the of all then must be close the motion upon determined a view of the whole evidence, and there assignment upon is no merit in her of error the matters brought ont the cross-examination of the wit defense they proper scope nesses ; for were within the of cross- examination. Sands v. Southern R. Co., 1, S. W. 478.

Upon ample such a view, we think there was against jury support make a case Sadler for the and to jury’s verdict Sadler, Mrs. under either (1) statutory two presumption theories: that the car operated being by was service; Sadler’s servant his (2) negligence that he was liable as master entrusting servant Foxall in car to Crenshaw, knowing was unfit, reckless, habitual drunkard, and without a driver’s license.

(1) undisputed offending It was that the car was by though registration owned Sadler, had not been changed undisputed to his name. It was likewise that the injuries negligence per sued were caused of a driving Upon proof son that car. of these facts, without (T. more, there arose, our under statute A. 59- C. sec. 1037), by chapter prima as amended Acts of presumption being operated case or that the car was facie by the owner or servant his service. injury

It is true this occurred, action was brought, passage before the Act, but the case expressly provides tried thereafter. Act, however, The legislation, that it “is in the nature of remedial and legislative given intent that it be construction” liberal (sec. 2); and that it “shall take from effect and after public passage, requiring (sec. its it” 3, welfare p. 452). Public Acts, 1957,

20 give full to the it was Act,

In order effect to necessary apply to cases tried after effective to it all its irrespective they brought date, were before of whether generally reme or after such date. It is held that parties rights deprive dial and are acts do not of vested properly applied pending & to actions. National Life App. 194 141, Accident Atwood, Ins. Co. 29 Tenn. (2d) 264 206, 196 350; Fitch, W. Dowlen v. Tenn. S. (2d) (2d) (2d) S. W. 41 A. L. R 791. 824, 357, S. W. objected is intro- It the evidence for Mrs. Sadler that statutory negatived, displaced, presumption duced being not law, as a car was showed; and matter operated by in his Sadler’s servant business. presumption, case,

But such or prima facie contrary displaced, to the law, a matter of presumed unless is uncontra fact, of the such evidence credibility is not dicted from witnesses whose and comes App. 24-26, Jones, in issue. McConnell v. 33 Tenn. (2d) 122; Pruitt, McParland v. S. W. Agnew, App. (2d) 299; 399, 406, 407, 284 W. Jones v. S. 499, 502, 197 Tenn. W. 825. 274 S. impeached were

In this case the witnesses credibility as to involve their cross-examination so testimony say part jury what leave it to to rejected, part accepted to find was to what be statutory presumption, or to accordance with the probable. contrary, the more to them as seemed reasonably (2) jury find also think the could We by Sad authorized, Foxall was from the evidence manager take agent lot, used-car ler’s charge over car, take it home with him keep protect it Sadler weekend, and 21 charge purpose theft; that he did take for this car doing acting in and, so, was servant and Sadler’s employment. or service course of his Foxall, as such servant took in his the car Sadler, kept control and and used it over weekend until jury might it turned over to or Crenshaw, so the find upon the evidence. It is true Foxall denied that he turned the car over Crenshaw and Crenshaw claimed stole plaintiff from him. But was that Foxall fairly loaned car to Crenshaw and this issue was jury proper charge. submitted to the under dispute There was little or no in the evidence that incompetent, Crenshaw was an habitual reckless, drunk- ard, and without a driver’s license; and Foxall acquainted well with a cousin of Crenshaw, his, and knew that Crenshaw was unfit to he entrusted with an automo- bile ; and the evidence was Crenshaw had been drink- ing day liquor all and was under the influence when Foxall him loaned the car. dangerous an

While automobile not a instru mentality proper competent if in condition and in hands, incompetent but, defective condition an hands person, thing danger; it is a owner of an auto duty public mobile owes to the not it to an entrust incompetent person, any person injured and is liable consequence duty of a breach the owner or Knepper, Grant servant. v. 245 N. Y. 156 158, N. E. 54 L. 650, 845; L.A. R. V. Nicholson Const. Co. Lane, v. (2d) 440, 150 1069;

177 S. W. Tennessee Coach Co. (2d) v. 178 Tenn. S. W. Reece, 404; Jones Agney, App. supra; case, same 38 Tenn. 427, 274 S. W. 1364; R. 2 Bestatement Annotation, A. L. 821; pp. 1058-1060. Torts, sec. jury reasonably find from

thinkWe could acting in the his servant Foxall Sadler, evidence that scope employment, negligently this car entrusted of his knowing reckless, was unfit, to that Crenshaw, Crenshaw license; driver’s drunkard, an habitual without through negligence was servant, that of his Sadler, snch injuries proximate legal for; sued or cause the ample support there evidence to the verdict that against Mrs. Sadler. assigns Judge’s upon re- the error Trial

Mrs. Sadler 4) give special request charge (No. in fusal to her plaintiff instructing they jury, them that if found parked standing street, behind car double on was negligence contributory guilty if he thus was injury, proximately not could which contributed to recover. negligence contributory think the defense of

We Upon plain was not to Mrs. motion available Sadler. plead specially on she facts relied tiff, was ordered plead by her defense a- she failed defense, contributory negligence. defense was Therefore, open requested charge properly to her and S. 280, v. Woodard, refused. Creekmore (2d) App. 31 Tenn. 397; Schocket, W. Olins 18. S. W. charge. assigns upon Mrs. Sadler other some errors merit All of and we no them have been considered find any they require do not detailed them. We think parts- of discussion. of them criticisms of Some were charge said what have which were in with we line

23: aboye.; requested and snob of instructions as were.correct covered, fully general statements of tbe law in the were charge.

Finally/ assigns Mrs. Sadler Trial error overruling Court erred her motion for a new trial upon ground that the verdict is so excessive as to passion,, prejudice, caprice part indicate on the of the jury. . .. plaintiff years

At the time the-accident, was 47 age, able-bodied, in excellent health, and lived with his engaged drug business) Nashville. wife He was in the operating drug store on Woodland Street, Nashville. -managed He loolted.after most of store, details 90-per of his work there, and-was to-do able cent running work of the business. plaintiff standing

As behind;his above stated, was car, closing approaching the trunk, when Ford, from the. crushing rear, crashed into him his and car, lower ...the part body his between .the two cars. He received injuries: numerous cuts and lacerations on his and head multiple pelvic hip:joints-; face; fractures of hones, punctures multiple .-legs of the bladder;. fractures both hips from his down to his with ‘the- ankles, broken and split fragments sticking through of the bones the skin many places. Baptist Hospital .Unconscious, he was taken to and

. orthopedic doctors there called Dr. John Glover, sur- geon. plaintiff suffering Dr. Glover found unconscious, pressure dangerously from his shock, blood low. Dr. put injuries on a Glover, witness, as. described plaintiff detail and his treatment of them. He treated hospital during at the three four weeks, which time with, necessary to a an electric motor it was use frame body every prevent pulleys to turn 30 minutes his plaintiff pneumonia. then taken home, He had upon hospital put where remained for bed, there several months. continuously plaintiff treating

Dr. had been G-lover day to the of the more trial, since the accident time necessary years. During period, it had been than 6% plaintiff hospital times a number of to take back to opera- operate him. He has had total five on keep complete record of his he did not all tions. While hospital expenses, bills, he did that his doctors bills, show place people expenses in his to work for salaries injuries, expenses to his and other incident the store $21,104.65. amounted plaintiff in- appears from his never recover will

It legs juries. can- “withered”, and smaller, One of is very safely, leg amputated his other much not be except to walk on crutches. Dr. is unable disabled. He disability permanent amounted estimated Glover period During percent. all of this than 70 to more undergone plaintiff physi- years much has than more 6% suffering. pain and mental cal detail the evidence not further need We fully them to injuries. described he and Dr. Glover Both jury, cross of either of no examination and there any deny offer defendants did Nor them. contrary, injuries. the of On extent nature injuries in this case are that “the conceded counsel their I have ever seen worst cases the horrible —one most ** *” (Tr. p. 3). standpoint from large, yet While amount of the verdict seems considering injuries, the nature and extent of pain plus suffering, pecuniary his losses, can we say not that the so amount allowed was as excessive passion, prejudice, caprice part indicate on or jury. large We not as need review cases where other larger injuries compar verdicts have been sustained for plaintiffs. able to See Yellow Cab of Nashville Co. App. Pewitt, 44 S. 17, 23, W. cases there cited. assignments

ofAll of error are overruled, judgment judgment of the is affirmed, Circuit Court will plaintiff Draper against be entered here for Paul de- fendant B. Sadler, Mrs. Marie J. Administratrix of E. judgment Sadler, deceased, for the amount of the below Judgment appeal. with interest and the costs will surety appeal be also entered on her bond appeal. costs Hickerson and Shriver, JJ., concur.

On Petition to Rehear petition An able and earnest to rehear been has filed complains holding Mrs. Sadler. She first of our she (made her waived motion for a directed verdict plaintiff’s case) by renewing at overruled close not it at close all the evidence. It is said that, by Hargis supra, shown and Marsh no cases, set form required words renew motion; such a and that Mrs. Sadler’s made counsel clear intention their her waive motion. appeared

In both those cases it that counsel for the moving defendant intended to renew motion at the by proof pat

close of the his co-defend- case; the that question liability; ant not did touch the and both of cases the the Court treated as renewed at the end motion disposed' upon survey case of all it the and evidence. appear,

It does not Mrs. that intended however, Sadler may her she to renew it be did motion. conceded While not intend to clear on record that it, waive seems upon it, she intended not to renew it but to and stand discharge responsibility disclaim for evidence adduced to her co-defendant Foxall as and at the time servant, same get discharge knowing* such evidence, benefit of discharge him as servant would also her master. Love Bayless, supra. v. man Co. thought,

So, think, motion; and still her we she waived upon assuming not, she did considered we the.motion but. expressed, in all evidence and the conclusion reached opinion, proof former that the case for the our made a (1) (2) jury upon statutory presumption the' entrusting incompetent negligence driver. the car Agnew, supra, 274 S. W. 499, 502, Jones (2d) 825, 827. statutory complains holding of this as to the

Petitioner merely presumption presumption. is said It proof disappears upon supplies place proof contrary presumed; fact introduction a witness Crenshaw, driver was called as who plaintiff credibility vouches”, plaintiff and “for whose using purpose proved and not the car for own presump- displaced thus Sadler, in the service ’ (cid:127) tion. presumption, dispelled, This however, is not as a purpose directing matter of law, for verdict, contrary pre the introduction of evidence the fact comes, sumed, unless such is uncontradicted credibility question. from a witness whose Mc supra; supra, Connell v. Jones, v. Pruitt, McParland Agnew, supra. and cases there cited; Jones v. say party

Nor is it to correct that a “vouches credibility” for the of a witness he introduces. itWhile party impeach is a rule that a cannot as witness, his own by proving his bad character, etc., not he bound ’ testimony precluded showing witness or from it to be Morgan, (1954) 1 untrue. Basic Problems of Evidence Hewgley Acceptance Corp., 63, 64; v. General Motors App. S. W. 355. pointed opinion, As in out our former all the witnesses, including the Crenshaw, driver to who testified as using circumstances under which were car, he was impeached by or contradicted cross-examination- so as credibility jury- say to involve their and leave it for the to part testimony accepted what of their should be and what part rejected, statutory and to find in with accord presumption. complains holding also our

Petitioner that the evi- jury made a for the dence case Sadler as master negligence entrusting for the of his servant in Poxall knowing car he was Crenshaw, to unfit to drive it. It is urged authority that Poxall had no car, to lend the negligent may doing that however he have been so, negligence scope such was outside course and of his employment and Sadler could not be held liable therefor. may servant as Foxall,

It Sadler’s be conceded authority to charge the car no to lend car, had any person any person it if had to and that lent other he would it, drive Sadler not he unfit to or known to have negligence; person’s it but not liable for such have been for Foxall’s is not liable not follow that Sadler does knowing negligence lending he Crenshaw, car to it. to drive reckless, and unfit drunk, was Sadler’s servant Foxall, think while We authority charge car, lend no car, of his had person, duty or unfit was under to entrust driving person prevent and such it, from rather to scope employment; duty within course and servant are liable both the master and and that injuries person, duty so causing another breach of jury might find. competent proper in in condition and automobile, An instrumentality, dangerous but, defec a hands, is not incompetent thing of hands, is a or tive condition highway; danger an on to the lives of others agent servant, his entrusts himself or who, or owner incompetent person known to be his to automobile damages caused such it, unfit to liable drive Vaughn negligence operating person’s the automobile. Millington 201, 22 W. Co., S. Motor v. supra; Knepper, L. Nicholson V. Const. 226; Grant v. supra; supra; Agnew, Rest., v. Lane, v. Jones Co. A. R. A. 134 L. 390; Annotation, 1051; 98 L. R. Torts, sec. 982. Knepper, supra, an owner sent motor

In v. Grant goods. deliver The a driver and salesman to with truck incompetent, permitted to who was salesman, driver parked drive, and ran the truck Re into car beside the opinion by though road. In an Cardozo, was held that authority permit no driver had to to salesman damages drive, still the owner was liable for the caused. supporting including Numerous authorities were cited, English Englehart cases of Farrant & [1897], Co. Tilling Q.1 A.; B. and Ricketts v. [1915], 240-C. Thos. 1 K. B. 6 B. R. C. A. 683-C. supra,

Likewise, in L.V. Nicholson Const. v. Lane, Co. agent Company or servant of defendant had the driver working* its automobile to take him to his home after hours and he directed the driver to take the car back Company’s place of business. Instead, driver got negligently went on lark own, drunk, injuries caused the for. sued It was held that, since the driver was known to an habitual be Com- drunkard, pany negligence agent for the liable of its or servant entrusting incompetent the car to such an driver.

Finally, petitioner complains overruling of our her assignment part sixth of error, based on of the charge Judge in which the Trial submitted theory entrusting that Sadler was liable his car knowing him Foxall, unfit be because of his habits of drunkenness and recklessness. It this was is said error because there was no evidence of and because habits paragraph part charge the latter of assumed that Foxall was unfit. hearing fully assign-

On former we considered prejudicial ment and concluded that there was no error part charge. in this still with satisfied We are ruling our on this matter. petition petitioner’s

The rehear denied at cost.

Case Details

Case Name: Sadler v. Draper

Court Name: Court of Appeals of Tennessee

Date Published: Jan 12, 1959

Citation: 326 S.W.2d 148

Court Abbreviation: Tenn. Ct. App.