Bell Cab & U-Drive-It Co. v. Sloan

• Decision Date: 09 February 1952
• Docket Number: U-DRIVE-IT
• Parties: , 193 Tenn. 352 BELL CAB &CO., Inc. v. SLOAN (two cases).
• Court: Tennessee Supreme Court

Page 41

246 S.W.2d 41

29 Beeler 352, 193 Tenn. 352

BELL CAB & U-DRIVE-IT CO., Inc. v. SLOAN (two cases).

Supreme Court of Tennessee.

Feb. 9, 1952.

W. D. Dodson, Nashville, for plaintiffs in error.

Roy A. Miles, Nashville, for defendant in error.

BURNETT, Justice.

The Sloans sued James B. Bass and Bell Cab & U-Drive-It Company, Inc., for personal injuries as a result of an automobile accident. Judgment was rendered against Bass and the corporate defendant and an appeal was prayed by the corporate defendant to the Court of Appeals where the judgments of the Circuit Court were affirmed.

The accident out of which this damage suit arose, happened about 3:00 or 3:30 P. M. in the afternoon. The defendant Bass (who did not appeal) was driving the cab belonging to the corporate defendant at the time of the accident and according to some of the witnesses, he had a lady sitting in the back of the cab. Bass though denies that there was a passenger in the cab at the time. The proof, without contradiction, by the dispatcher of the cab company, a young lady in the office of the cab company, and by Bass is that Bass went to work at 5:00 o'clock on the morning of the day of the accident and checked out at 12:30 on that day. After checking out he requested of the dispatcher the loan of the cab so that he could use it on his personal business that afternoon in the search of an apartment. This testimony of the dispatcher and the young lady is supported by the records of the cab company. The corporate defendant admittedly was the owner of the cab; admittedly the cab was being operated by a driver generally employed by the corporate defendant; at the time of the accident the vehicle was being operated under conditions resembling those which normally attend its operation in the master's business. Bass does not explain the presence of another party in his car but simply denies that he had another person in his car. From these facts, even though the dispatcher and the young lady in the office and Bass had testified positively that the car was not being used on the master's business but was purely for a personal mission of Bass', the Court of Appeals and the jury found that Bass was acting within the scope of his implied general authority and that the corporate defendant was liable.

The Court of Appeals says: 'Hence, the testimony of the witnesses for the defendant company to the effect that the cab was not being used on its mission, or within the scope of the servant's employment, is contradicted by logical inferences to be drawn from proven facts establishing conditions resembling those which normally attended the use of the cab in the company's business.'

Even though you do have evidential facts which would indicate and show and allow the jury to draw reasonable inferences that the car was being used on the master's business, when you have positive proof of the officers or those owning the car that the car was not being used on their business but was being used on a loan for the personal business or personal pleasure of one who had formerly or who was in their employ that then in the absence of more, is it the duty of the trial judge to take the case away from the jury and direct a verdict? These inferences drawn from the use of the cab raise an inference that normally would make a jury question but when you have the positive uncontradicted statements as here, should a jury be allowed to speculate on the matter?

This Court in Goodman v. Wilson, 129 Tenn. 464, 467, 166 S.W. 752, 753, 51 L.R.A.,N.S., 1116, said: 'It is undoubtedly true, as a general proposition of law, that the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged with the injury resulting from the wrong at the time and in respect of the very transaction out of which the injury arose, and the mere fact that the driver of the automobile was the defendants' servant will not make the defendant liable. It must be further shown that at the time of the accident the driver was on the master's business, and acting within the scope of his employment.' (Emphasis ours.)

This statement has been expressly approved many times since by this Court and is unquestionably sound law.

We have in this case a stipulation agreeing that the cab was a cab of the corporate defendant and was registered in the name of that defendant. Under Code Sections 2701, 2702, showing of this registration made a prima facie case in favor of the plaintiff that this cab was being operated and within the requirements of the quotation last above made from Goodman v. Wilson, supra, but when the defendant offers credible evidence that the cab was not being used for their use and benefit at the time of the accident then this presumption disappears. The presumption fixed by these statutes is, 'A rule of law, fixed and relatively definite in its scope and effect, which attaches to certain evidentiary facts and is productive of specific procedural consequences respecting the duty of proceeding with the evidence. According to this view, where the opponent offers evidence contrary to a presumption, the presumption disappears, and the case stands upon the facts and whatever inferences may be drawn therefrom.' 20 Am.Jur., Sec. 162, page 165. This is the rule we follow. Wright v. Bridges, 16 Tenn.App. 576, 65 S.W.2d 265.

So we have in this case the proof of ownership and direct proof that the owner had loaned the cab to his codefendant, Bass, for his personal use at the time of this accident. Of course this proof of ownership and the proof that the cab was being used by...