Beckendorf v. Simmons

• Decision Date: 06 July 1976
• Citation: 539 S.W.2d 31
• Parties: F. C. BECKENDORF, Sr., Petitioner-Plaintiff, v. Richard H. SIMMONS, d/b/a Simmons Sales Company, Respondent-Defendant.
• Court: Tennessee Supreme Court

Page 31

539 S.W.2d 31

F. C. BECKENDORF, Sr., Petitioner-Plaintiff, v.Richard H. SIMMONS, d/b/a Simmons Sales Company, Respondent-Defendant.

Supreme Court of Tennessee.

July 6, 1976.

Henry L. Klein, J. W. Kirkpatrick, Memphis, for petitioner-plaintiff; Kirkpatrick & Lucas, Memphis, of counsel.

Joe D. Spicer, Eugene Charles Gaerig, Memphis, for respondent-defendant; Holt, Batchelor, Taylor & Spicer, Memphis, of counsel.

OPINION

HABRISON, Justice.

This case presents a claim against the lessee of a motor vehicle arising from its unauthorized use by an employee.Both the trial court and the Court of Appeals sustained motions for summary judgment filed on behalf of the employer.There were some conflicts as to the fats testified to by the employer and the employee in discovery depositions, which were used in support of the motion for summary judgment.We granted certiorari to consider whether the conflicts were sufficiently material to require further proceedings.

Despite some conflicting testimony, certain basic facts emerge without dispute from the pleadings and from two depositions on file.Respondent Simmons operated a small business, in which three other persons besides himself were employed.He leased a truck from a rental agency, and on September 18, 1971 this truck was involved in the accident in which the petitioner was injured.Only the claim of petitioner against the employer is involved in the present appeal.

One of the employees of respondent was Donald Wesley Piner, who was 28 years of age at the time his testimony was taken.He had been employed by respondent for about three years prior to the accident.At the time of the accident Piner was operating the leased truck contrary to the express instructions of his employer, and on a personal mission of his own.As the case comes here no liability is claimed against respondent by reason of the master-servant relationship.The testimony is uncontradicted that Piner was not using the vehicle, directly or indirectly, on any business of his employer.The accident occurred late on a Saturday afternoon.At that time Piner was heavily under the influence of alcohol.

It is clear from the record that there was no actual bailment of the vehicle by respondent to the employee.Ordinarily, of course, a bailor is not responsible to third parties for negligent acts of a bailee, but in this case there is not even a bailment relationship, because the vehicle was taken contrary to the express instructions of the employer, and completely without his knowledge, according to the uncontradicted testimony.

The single theory which is advanced by the petitioner to impose liability upon the employer in this Court is one of alleged negligence in failing to anticipate that the employee might take the vehicle without authority, become intoxicated, and injure a third person.The theory cannot actually be said to be one of 'negligent entrustment', as that term has generally been used in the cases, because, as previously stated, there ws no actual bailment, 'entrustment', or other permissive use, to sustain such a theory.

Under the testimony in the record, Piner was not by any means an habitual drunkard or an alcoholic.It is shown that he did drink to excess on some occasions, although the testimony is clear that he never drank while at work, nor while performing any authorized mission of his employer.On one previous occasion, about five months before the accident in question, Piner had been using the truck on a weekend for personal purposes, with the permission of his employer.On that occasion he exceeded the scope of the permission given, and took the vehicle to another city, where he was involved in a single-vehicle accident while under the influence of intoxicants.Respondent learned of this episode, and learned that the driver's license of the employee was suspended or revoked as a result thereof.

In the months between the incident just mentioned and the accident involved in the present case, the employer denied the employee any further permission to drive the truck for personal purposes.Both he and the employee so testified.The employer testified that he also forbade the employee to use the truck on business, and said that he had Piner driven on business missions by other employees.Piner, however, testified that he in fact did drive the vehicle on several occasions in the interval in question, to make 'service calls'.He also took the vehicle for personal use several times contrary to instructions, but there is no evidence of his drinking on any of these occasions.Piner testified respondent twice discovered his unauthorized use, and Piner was reprimanded on each of these occasions by the employer.

Piner and the other employees of respondent did not work on weekends, but they did have permission to come to the employer's place of business and use equipment there for personal purposes.A key to the leased truck was in the respondent's shop, readily accessible to Piner or any other employee.The theory of negligence basically is that respondent failed to take reasonable precautions to prevent the unauthorized removal of his vehicle from the premises, wnen he knew that Piner was no longer a licensed driver, knew that Piner sometimes took the truck, and knew that on some occasions he drank to excess.

The Court of Appeals held, correctly in our opinion, that the foregoing facts were insufficient to fasten personal liability upon the employer, even construing the conflicts in the depositions favorably to the petitioner.

Tennessee has long recognized the principle that the owner of a vehicle who furnishes or lends it to a know incompetent driver may be liable for damages to third persons injured by the negligence of that driver.SeeRowan v. Sauls, 195 Tenn. 573, 578, 260 S.W.2d 880(1953);Nicholson Construction Co. v. Lane, 177 Tenn. 440, 150 S.W.2d 1069(1941);Reid v. Messer, 33 Tenn.App. 255, 231 S.W.2d 400(1949).

In these cases, however, there was an actual bailment or entrustment in each instance by the owner to the driver, and in each instance the driver was either intoxicated when custody was delivered, or was known to be habitually addicted to excessive drinking.In none of the cases was there an unauthorized taking of the vehicle from the custody of the owner.

In the case of Parrish v. Yeiser, 41 Tenn.App. 690, 298 S.W.2d 556(1955), the owner of the vehicle in question was held not liable as a matter of law in entrusting its custody to a youthful driver who had been known to have had an accident only a short time previously.In Brown v. Harkleroad, 39 Tenn.App. 657, 287 S.W.2d 92(1955), a parent was held not guilty of negligence as a matter of law in purchasing and delivering custody of a vehicle to an adult son, despite the fact that the son had had numerous accidents, and there was evidence that he was known to be an habitually reckless and drunken driver.

In the recent case of Dukes v. McGimsey, Tenn.App., 500 S.W.2d 448(1973) the bailor of a vehicle was sued when the bailee became intoxicated and injured a third person.The bailee was a youthful, unlicensed driver, and this fact was known to the bailor.The bailor further knew that the driver occasionally drank, although she testified that she had never seen or known him to drink to excess.On the occasion in question, she loaned the vehicle to the driver, who became excessively intoxicated and was involved in a serious accident.The trial court held the owner liable under a theory of negligent entrustment, but the Court of Appeals unanimously reversed and dismissed.

As stated, in the present case in order for petitioner to hold respondent liable, petitioner must go further than to show a negligent entrustment, because there was no entrustment at all, but an unauthorized taking and use of the vehicle.Such an unauthorized, non-permissive use is ordinarily insufficient even to establish extended liability insurance coverage to the...