Cobb v. Waddell

369 S.W.2d 743, 51 Tenn. App. 458, 2 A.L.R. 3d 457, 1963 Tenn. App. LEXIS 80
CourtCourt of Appeals of Tennessee
DecidedApril 17, 1963
StatusPublished
Cited by1 cases

This text of 369 S.W.2d 743 (Cobb v. Waddell) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cobb v. Waddell, 369 S.W.2d 743, 51 Tenn. App. 458, 2 A.L.R. 3d 457, 1963 Tenn. App. LEXIS 80 (Tenn. Ct. App. 1963).

Opinion

BEJACH, J.

This cause involves an appeal in error by N. J. Cobb, who was defendant in the lower court, from a verdict in the sum of $3,850 and judgment thereon in that amount rendered in the Circuit Court of Shelby County, in favor of the plaintiff, Mrs. Virgie Waddell. For convenience the parties will be referred to as in the lower court, as plaintiff and defendant, or called by their respective names.

The accident which resulted in the judgment in favor of plaintiff occurred in Shelby County, Tennessee March 26, 1961 on the Raleigh-LaGrange Road near Cordova. According to the testimony of plaintiff she was proceeding in a westerly direction on Raleigh-LaGrange Road, which road, in that area, has a number of curves and hills. According to her testimony, while she was in a curve, she glimpsed an oncoming vehicle driven by defendant, approaching from the opposite direction. Said [460]*460. vehicle was, she said, on the left hand side of the road. Whereupon, she put on her brakes and pulled to the right, trying to avoid a head on collision, but the left front of defendant’s truck struck the left rear of plaintiff’s car. Plaintiff was thrown from her car to the road. She sustained a cerebral concussion, a fracture of the right zygomatic arch, lacerations of the face, cervical strain, low back strain, with multiple contusions and abrasions. As stated, the verdict of the jury was in favor of plaintiff in the sum of $3,850. After the defendant’s motion for new trial was overruled, he appealed in error to this court where he has filed four assignments of error.

By assignment of error 1, defendant complains of the refusal of the trial court to permit counsel for defendant to question the witness, J. T. Jones, on redirect examination, regarding his. efforts to contact the plaintiff after March 27, 1961.

By assignment number. 2, defendant complains of the refusal of the trial judge to grant his motion to direct a verdict in his fávor with respect to the aggravation of a preexisting pelvic disorder on the part of the plaintiff, made at the conclusion of all the proof.

.By. assignment of error number 3, defendant complains of the refusal of .the trial judge to, grant his request for special instruction number 1, which .was as follows:

“The court further instructs the jury that there can be no recovery in this case by the plaintiff for an aggravation of a preexisting pelvic disorder because the plaintiff has admitted and conceded that she personally • does not know whether her pelvic [461]*461disorder ■ was aggravated or activated as a result of the motor vehicle accident on March 26,1961, and there is no competent- medical proof in the record, that the plaintiff’s pelvic disorder was activated'or aggravated by said accident;- and the court further instructs the jury that there can be no recovery in this case by the plaintiff for a permanent loss of sight in one of the plaintiff’s eyes because she has admitted and conceded that any fuzziness or other difficulty with her vision as a result of said motor vehicle accident on March 26, 196Í, has heretofore cleared up; and the court further instructs the jury that there can be no recovery in this case by the jplaintiff for any permanent disability as a result of the injuries received by the plaintiff in said motor vehicle accident on March 26, 1961, because there is no competent medical or other proof in this record that the pláintiff sustained any such permanent disability as a result of said accident.”

By assignment .of error number 4, defendant complains of. the refusal, of. the trial, judge to grant defendant’s request for a special request' number 2, which was as follows:

■ “The court further instructs the jury that it is the further theory and contention ■ of' the defendant that plaintiff was driving and operating her vehicle in a negligent, careless, reckless, dangerous and unlawful manner and' so as to lose control of said vehicle and to skid to the wrong side of the RaleighLaGrange Road and to collide with the left-front of defendant’s truck, which was on its proper side of said road, too suddenly and abruptly for the defendant to stop, swerve, or otherwise avoid the collision [462]*462although he applied his brakes and pulled to the right side of the. road to such an extent the right front wheel of his truck was nearly off the pavement when his truck was struck by the plaintiff’s vehicle and he did everything within his power to avoid the accident.”

We will dispose of these assignments of error in the order named. It is the theory and contention of counsel for defendant that the refusal of the trial judge to permit him, on redirect examination, to interrogate Sergeant J. T. Jones regarding his efforts to contact plaintiff after March 27, 1961, constitutes reversible error. This contention is to the effect that such interrogation would have disclosed that Sergeant Jones was undertaking to get in contact with plaintiff, while she was in the hospital, for the purpose of delivering to her a citation to appear in the General Sessions Court, charged with reckless driving, which fact might have induced the jury to decide in favor of the defendant. On direct examination, Sergeant Jones was asked about a supplemental statement attached to the accident report, which supplemental statement was dated “5-23-61,” about two months after the accident. When Sergeant Jones stated that the attached notation had nothing to do with the accident, the matter was not pursued further. On redirect examination, however, defendant’s counsel undertook to develop that Sergeant Jones was trying to contact plaintiff in connection with the citation to appear in General Sessions Court. Objection to this line of interrogation was sustained by the trial judge. We think the matter was one which addressed itself to the sound discretion of the judge; and, even if he might properly have admitted his line of interrogation, he should not [463]*463be put iu error for Ms refusal so to do. Iu any event, we tbink the ruling, even if it be considered erroneous, would not justify a reversal in view of our harmless error statute, Section 27-117, T.C.A.

Assignment of error number 2, that the court erred in overruling the defendant’s motion made at the close of all the proof to direct a verdict in his favor with respect to the aggravation of a preexisting pelvic disorder on the part of the plaintiff, is based on the contention that there was no competent medical testimony in the record that the preexisting pelvic disorder of the plaintiff was in fact activated or aggravated by the accident, and that plaintiff, herself, admitted that she did not know whether or not a recurrence was caused by the accident.

The proof shows that in February, 1961, plaintiff underwent surgery for a pelvic disorder involving excessive menstrual bleeding, and that this condition was corrected and the excessive bleeding eliminated. It also shows that about one week to ten days prior to the accident, on March 26, 1961, plaintiff was examined by Dr. Lewis, at which time the pelvic condition had been eliminated, and that plaintiff had also been examined by Dr. Weems, the company doctor of Kimberly-Clark Company for whom plaintiff worked, and that she had been cleared to return to work on the 27th of March, 1961. Shortly after the accident, while plaintiff was in the hospital, the pelvic disorder, with vaginal bleeding, recurred. Pláintiff, herself, on cross examination, testified on this subject, as follows:

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Wilson v. Cook Manufacturing Co.
405 S.W.2d 584 (Court of Appeals of Tennessee, 1966)

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Bluebook (online)
369 S.W.2d 743, 51 Tenn. App. 458, 2 A.L.R. 3d 457, 1963 Tenn. App. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobb-v-waddell-tennctapp-1963.