Tibbs v. Ake ex rel. Ake

505 S.W.2d 232, 1974 Tenn. LEXIS 524
CourtTennessee Supreme Court
DecidedFebruary 4, 1974
StatusPublished
Cited by6 cases

This text of 505 S.W.2d 232 (Tibbs v. Ake ex rel. Ake) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tibbs v. Ake ex rel. Ake, 505 S.W.2d 232, 1974 Tenn. LEXIS 524 (Tenn. 1974).

Opinion

OPINION

CHATTIN, Justice.

We will refer to the parties as they appeared in the trial court; that is, respon[233]*233dent as plaintiff and petitioners as the defendants.

Plaintiff brought suit against defendants and James W. King to recover for the wrongful death of Jerry Donald Ake as a result of an automobile accident occurring in Nashville at the intersection of Fifth Avenue, North, and Harrison Street on November 28, 1970, when he, the deceased, was riding as a passenger in the car belonging to King and operated by Tommy Joe Tibbs.

The case was tried before a jury and resulted in a verdict and judgment in favor of the plaintiff for $22,500.00

On motion of King made at the conclusion of all the evidence, the jury was directed to return a verdict in his favor, and from this action of the court no appeal was perfected.

As stated in the opinion of the Court of Appeals, the essential facts are:

“The record shows that plaintiff’s decedent at the time of the accident was riding as a guest passenger in an automobile owned by the defendant, James W. King, and being driven by defendant, Tommy Joe Tibbs; that it was proceeding in a westerly direction on Harrison Street in Nashville and, when it reached the intersection of Fifth Avenue, North, which is a one-way street for traffic moving northwardly, he did not observe the stop sign at the intersection but proceeded into Fifth Avenue, North, where his automobile was struck on the right side by the car driven by defendant, James W. Ralston, which was proceeding in a southerly direction on Fifth Avenue, North, which was a one-way street for traffic proceeding northwardly.
“There is proof in the record to the effect that Mr. Ralston, and those in the car with him, had just left the King of the Road Motel where he had consumed some alcoholic beverage. It, also, appears that just prior to the accident Mr. Ralston was admonished by his wife, who was a passenger in the car, that he was going the wrong way on Fifth Avenue, North, and that, as he came to the place of the accident, he only saw a shadow or blur prior to the collision and did not apply his brakes. The Tibbs vehicle was overturned with extensive damage to the right side, whereas the damage was to the front end of the Ralston vehicle. After the collision, Ralston’s car continued for some distance, knocking down a fire hydrant and striking the guy wire of a telephone pole. The collision was shown to have occurred in the northwest quadrant of the intersection of the two streets.
“It was stipulated by the parties that, subsequent to the accident in question here, the defendant, Tommy Joe Tibbs, was involved in another accident wherein the car in which he was riding as a guest collided with a train and he was rendered unconscious, and, at the time of the trial, was still unconscious.”

The Court of Appeals affirmed the judgment of the trial court. We granted the petition for the writ of certiorari filed on behalf of Ralston and denied the petition for the writ filed on behalf of Tibbs.

Counsel for Ralston filed four assignments of error in his brief filed in the Court of Appeals. In his petition for cer-tiorari he reasserted only one assignment of error which is as follows:

“The trial court erred in excluding the direct testimony of James Luther when called on behalf of the defendant Ral-ston. Further, when this same witness was called by Counsel for the defendant, King, the trial court erred in allowing the jury to hear the testimony of the witness Luther on direct examination by Mr. Kerns and, further, in refusing to allow the testimony of this witness on cross examination by Mr. Gracey after this witness had been offered as a witness on behalf of King. The defendant Ralston respectfully submits that the exclusion of this evidence was prejudicial [234]*234error because it denied the jury access to evidence which they had a clear right to hear and evaluate.”

Counsel for Ralston states in his brief this assignment raises two basic issues:

“(1) Whether the evidence which was excluded by the trial court and which exclusion was affirmed by the Court of Appeals, was admissible as an admission by the defendant, Tibbs, and
“(2) Whether the same evidence was admissible as a declaration against interest?”

In order to understand this assignment of error, it is necessary to state a short summary of the proffered testimony of James Luther which was excluded by the trial judge.

“In the absence of the jury, Mr. Luther testified that he investigated the accident in question just a few days after it occurred, to-wit: November 30th, 1970, and that he talked with Tommy Joe Tibbs who told him that he, Tibbs, did not have a driver’s license and never had had. He questioned Tommy Joe Tibbs with reference to where he and his companion, Jerry Donald Ake, had been just before the accident and was told that they had been to the restaurant of Charlie Nickens on Jefferson Street; that he had drunk five beers and Jerry Donald Ake had drunk four beers; that as they drove away from there and towards the scene of the accident the roads were wet, that it was sprinkling rain but he didn’t have the windshield wipers operating ; that his companion did not make any complaint about the way he was driving; that as they proceeded several cars blinked their lights at him; that he didn’t remember when he turned his lights on when he left the Nickens place, but t;hat definitely, they were off after the accident; that he stopped at the stop sign at Fourth Avenue, North, and that he slowed down and checked the traffic to his left as he went into the intersection at Fifth Avenue, North, and then drove on into the intersection without stopping, and that he did not see the Ralston car until he was in the intersection and when he did see it, it was so close that he didn’t have time to do anything.
“Mr. Luther testified that when he began his investigation, he was investigating on behalf of Mr. King and at the time he talked to Tommy Joe Tibbs, he was not investigating on Tibbs’ behalf, at the time in question he was an accident investigator for Travelers Insurance Company, the liability insurer of the automobile owned by the defendant King.”

It is Ralston’s contention that the foregoing testimony should have been allowed to go to the jury since it constituted both an admission and a declaration against interest, and that it should have been admitted so the jury could weigh it along with all the other evidence.

The Court of Appeals determined the testimony was not admissible as a declaration against interest. Paraphrasing from the case of Tom Love Co. v. Maryland Cas. Co., 166 Tenn. 275, 61 S.W.2d 672 (1933), the Court of Appeals stated that three requirements must be met before testimony can be introduced regarding a declaration against interest. The requirements, as stated by the Court, are: (1) the de-clarant must be dead, (2) the declaration must have been against the declarant’s pecuniary or proprietary interest, and (3) the declarant must have had no probable motive to falsify the facts declared.

Since the declarant in this case, Tibbs, is alive, the Court of Appeals concluded that the evidence was properly excluded.

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Related

Burchett v. Stephens
794 S.W.2d 745 (Court of Appeals of Tennessee, 1990)
Pankow v. Mitchell
737 S.W.2d 293 (Court of Appeals of Tennessee, 1987)
McDaniel v. General Care Corp.
627 S.W.2d 129 (Court of Appeals of Tennessee, 1981)
Breeden v. Independent Fire Insurance Co.
530 S.W.2d 769 (Tennessee Supreme Court, 1975)

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Bluebook (online)
505 S.W.2d 232, 1974 Tenn. LEXIS 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tibbs-v-ake-ex-rel-ake-tenn-1974.