# McMahan v. Tucker

> Court of Appeals of Tennessee · July 2, 1948 · 31 Tenn. App. 429

URL: https://www.frixlaw.com/law-library/cases/3894536

## Case

- **Full name:** McMAHAN Et Al. v. TUCKER Et Al.
- **Court:** Court of Appeals of Tennessee
- **Decided:** July 2, 1948
- **Citations:** 31 Tenn. App. 429; 216 S.W.2d 356; 1948 Tenn. App. LEXIS 104
- **Precedential status:** Published
- **Opinion:** Dissent by Baptist
- **Judges:** Adams, Swepston, Baptist
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

Baptist, Judge
(dissenting).
I am in accord with the finding of the majority of the Court that the statutory presumption arising from proof
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of registration was overturned by credible proof, after excluding that of the defendant, Tucker, and could not be considered for any pupose by the jury.
I am unable to agree with the holding in the opinion that there is in the record substantive proof from which it could be legitimately and logically inferred that the truck was being used in furtherance of defendant, Tucker’s business and that such inferences are to be considered by the jury with the other evidence.
These cases arise out of a collision occurring in the nighttime on U. S. Highway 51, about a mile and a half south of Ripley, Tennessee, between a truck owned by the defendant, Tucker, and an automobile occupied by the seven plaintiffs. The collision occurred on March 19, 1945, and the suits were instituted on March 16, 1946. The cases were tried in October 1946.
At the time the suits were filed there was no evidence tending to make out a case against the defendant, Griffin. Six months after the suits were filed the evidence against Griffin was developed in this manner.
Bob Duvall testified that on the night of the collision he and the witness, Sellers, were driving in Duvall’s truck eastwardly on the Pleasant Hill road at 11 p. m.: That his headlights were on and that he saw a truck of the City Lumber Company loaded with wire parked on the south side of the road facing west; and he was driving about 20 miles an hour and as he approached he looked through his own windshield and through the windshield of the parked truck and recognized the defendant Griffin seated on the driver’s side in the cab of the truck.
The Witness Sellers testified that he saw the truck but was not able to distinguish any one in the cab and was not informed by Duvall then or later that Griffin was the occupant.
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Immediately after tlie accident the Sheriff of the County undertook an investigation to ascertain, if possible, the location of any wire that had been taken from the City Lumber Company. In trying to locate the wire, the sheriff in company with the defendant, Tucker, went to the home of Duvall who was not at home. He was informed of this visit and stated that he resented it as a reflection on his honesty. Although he knew the sheriff was making efforts to locate the wire and the driver of the truck he made no report to the sheriff of having seen the truck as he testified to.
Duvall is a kin man of the plaintiff, Allen McMahan, who was injured in the wreck and whose father-in-law, mother-in-law and brother-in-law had been killed.
He testified that he and McMahan were together several times a week from the time of the accident until about eighteen months later, during which time he did not tell McMahan anything about having seen Griffin in the truck on the night of the accident. That about eighteen months after the accident he and McMahan were together in a truck going to Memphis and that on the way McMahan asked him if he knew anything about the accident; that he did not answer McMahan hut laughed, whereupon Mc-Mahan told him that if he knew anything about it to tell Mr. Durham, one of the attorneys for the plaintiff; that thereafter he went to the office of Mr. Durham and told him about seeing Griffin in the truck..
Duvall gives no explanation of why he withheld this vital"information from his friend and kinsman or of his sudden resolution to tell Mr. Durham about it a year and a half after the accident.
This performance on Duvall’s part runs contrary to all the experience I have had in human affairs and of how normal men conduct themselves in the affairs of life.
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Also, I think Duvall is gifted above the other sons of men in eyesight in being able to recognize the occupant of the truck, in the nighttime, through his own windshield and the windshield of the truck facing him. Also I think this experience fails to accord with the experience of others under similar circumstances. Sellers with the same opportunity, was not able to recognize Griffin as an occupant of the cab of the truck.
But, whatever may be thought of the circumstance above related, as affecting the credibility of the witness, this Court is not authorized to disturb the verdict of a jury, approved by the Trial Judge, if there is any material evidence to support the same. In the case against the defendant Griffin I think the Court is bound by that rule.
I think the Tidal Court was not in error in directing a verdict in favor of the defendant Tucker.
Upon this question my difference with the majority is in the application of the rule stated in Frank v. Wright, 140 Tenn. 535 , 205 S. W. 434 , that “ordinarily the testimony of a witness who is not contradicted, impeached, or discredited must be accepted as true; but, if the witness relied upon to establish a given fact be discredited or impeached, that fact may not be treated as established as a matter of law or for purposes of a motion for peremptory instructions. There must, it is true, be substantial and more colorable claim that the witness has been discredited. ’ ’
The contention is that the defendant Tucker’s testimony is directly contradicted by the testimony of the witnesses, Thompkins and Duvall, to the effect that Thompkins was in the defendant’s place of business on Saturday afternoon and inquired about hog wire and that Tucker told him he didn’t have any and that both wit
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nesses testified to seeing several rolls of wire on a truck belonging to defendant parked on the yard of the City Lumber Company. Tucker’s testimony is that he knew the two witnesses and that he did not see either of them on the occasion testified to and didn’t believe either of them were there; that he had reason to doubt it from what Duvall said. I think a proper analysis of Tucker’s testimony is that he was doubtful of the fact that the witnesses were there, not from his own recollection but from what the witnesses themselves had said.
The opinion holds that this is a direct conflict and contradiction and as such tends to impeach Tucker’s testimony.
I do not think this testimony material to the issue or that it presents an irreconcilable conflict in the testimony.
The plaintiffs contend that Tucker’s testimony that there was no OPA ceilings on wire is an impeachment of his testimony. I think this is immaterial to the issue.
Also plaintiffs contend that Tucker is contradicted by the witness Jones in that he did not remember saying to Jones that if he found the driver of the truck worked for him to let 'the matter rest until morning.
I think this is likewise immaterial.
In the case of Bogle v. Hammons et al., 49 Tenn. 136 , it is said: “Other propositions have been vehemently urged in argument by the defendants; but after a very careful examination of this voluminous record, and all the evidence, relevant and irrelevant, contained in it, we are unable to perceive that the credibility of any of the witnesses has been successfully assailed. There is no proof as to the general character of either of them, and the legal presumption is that all have testified to the truth. It would be useless to repeat here the names of the witnesses, or to particularize the statements which have been assailed. The evidence of persons who have
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been examined under oath cannot be impeached, as seems to be the effort in this case, by showing trivial discrepancies as to collateral matters, especially when the witnesses examined for the purpose do not themselves make positive statements, and admit their own want of accurate recollection as to the facts. Nor can the positive statement of a witness that he heard a particular conversation, be disproved, as was attempted, by the statement of another witness that he was present but does not remember whether it occurred or not. Nor can the loose conversations of witnesses, which seem to be at variance with their depositions, be regarded as successfully impugning their veracity, without first calling their attention, as nearly as possible, to the time, place and circumstances of the supposed conversation, so as to give them an opportunity for explanation.”
In Frank v. Wright, supra, the rule is laid down that it must appear not only that the master is the owner of the instrumentality, but also that it was being used under conditions whch normally attended its use in connection with its use in the masters business.
I think the undisputed proof shows that the truck was not being used under conditions which normally attended its use in the masters business.
It is shown by all the witnesses, and not disputed, that Tucker did not operate his business on Sunday and that no employee was authorized to use this truck on Sunday for any business purpose.
It is further shown that the place of business of the defendant was broken into on Sunday night and two rolls of hog fence wire stolen.
Tom Jones, witness for the plaintiff, testified that he saw the truck in question on Sunday night on the Pleasant Hill road with two rolls of hog fence wire on it. That
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this circumstance was so unusual that he reported it to the sheriff and notified Tucker. That Tucker told him he should have checked to see who was on the truck and told him to put whoever was driving the truck in jail if arrested unless it was one of his own men and, in that event, to let the matter rest until morning.
If this truck and wire were taken by some thief, Griffin or any other person, Tucker would not he liable.
The plaintiff has a theory that Tucker was engaged in some sort of black market operation, and that the wire was being delivered to some person in pursuance of such operation and consequently in furtherance of Tucker’s business. There is no proof to support such a theory.
I do not think that there is any fact shown in the record from which it may logically he inferred that the driver of the truck was on a mission for the owner within the scope of his employment on the night of this accident.
I respectfully enter my dissent to the very able opinion prepared by Judge Adams and concurred in by Judge Swepston.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3894536. Public record. Not legal advice.