Biggert v. Memphis Power & Light Co.

• Decision Date: 19 March 1935
• Citation: 80 S.W.2d 90
• Parties: BIGGERT v. MEMPHIS POWER & LIGHT CO. et al.
• Court: Tennessee Supreme Court

Page 90

80 S.W.2d 90

BIGGERT v. MEMPHIS POWER & LIGHT CO. et al.

Supreme Court of Tennessee.

March 19, 1935.

Error to Circuit Court, Shelby County; A. B. Pittman, Judge.

Suit by Ruth Biggert against the Memphis Power & Light Company, the Kensinger Chevrolet Company, and Henry B. Frank. Upon a verdict for plaintiff against all the defendants, a new trial was granted to the Power Company and the Kensinger Company, and judgment was entered against Frank. To review a judgment dismissing the suit as to the named defendants, plaintiff brings error.

Affirmed.

Jos. H. Norville and Wallace Lopez, both of Memphis, for plaintiff in error.

Waring, Walker & Cox, of Memphis, for defendant Kensinger Chevrolet Co.

Emmett Braden, of Memphis, for defendant Memphis Power & Light Co.

CHAMBLISS, Justice.

This suit was brought to recover for personal injuries suffered in an automobile collision on the streets of Memphis on March 8, 1933. Plaintiff sued jointly Memphis Power & Light Company, Kensinger Chevrolet Company, and Henry B. Frank. The jury awarded $250 damages against the three defendants. The court granted a new trial to the Power & Light Company and the Kensinger Company, and entered a judgment against Frank, which was not appealed from.

On the rehearing of the case it was tried before the circuit judge without a jury on a stipulation of facts, and by him dismissed as to both the Power & Light Company and Kensinger Company. Plaintiff appeals.

It is stipulated that the car involved was being driven by Frank at the time of the accident on a personal mission; that Frank was the owner of the car, having purchased it on February 24, 1933, from Kensinger Company, automobile dealers of Memphis; that the car had been owned in 1932 by the Power Company, but had been sold by it to the Kensinger Company on January 26, 1933, and that it had not been used in the business of the Power Company since that date; also that it had not been used in the business of the Kensinger Company, or by it, since its sale of it to Frank on the 24th of February, 1933.

It is further stipulated that the license plate on the car at the time of the accident was for the year 1932, and had been purchased by the Power Company, the then owner; that the Power Company had not notified the county court of its sale of the car to Kensinger Company, as provided by Code, § 1154, and had delivered the car upon its sale with the expired license attached to it; and that the Kensinger Company did not report this purchase at the time to the county court clerk as provided for by Code, § 1154. The stipulation further recites:

"The Kensinger Chevrolet Company used the automobile on the streets of the City of Memphis for demonstration purposes for resale under its Dealer Number Plates from January 26, 1933 to February 24, 1933, and sold the said automobile to H. B. Frank on February 24, 1933. The Kensinger Chevrolet Company, within three days after the sale to H. B. Frank, reported the sale of this car, together with certain other sales of automobiles made by it, to the County Clerk's which report is there on file. Through a clerical error in the office of the Kensinger Chevrolet Company, the name of the purchaser was listed as Henry Bloompot, instead of H. B. Frank, but the license or registration number and motor number were correctly given, and the address of the purchaser was the address of H. B. Frank, and information that it was a used car, the type, make, horsepower, etc. H. B. Frank did not report the purchase of the car to the Clerk.

"The Kensinger Chevrolet Company had made application for and received through the County Court Clerk `Dealers Number Plates' for the Year 1933, in conformity with Code 1932, § 1157. These number plates were used on this Ford automobile while it was in the possession of the Kensinger Chevrolet Company, by placing said Dealers Number Plate over the 1932 registration numbers. This defendant is a licensed dealer in new and used automobiles in Memphis, Shelby County, Tennessee."

It will be seen that we have here a case in which it is stipulated that (1) the driver was the owner of the car, and (2) was using it on a personal mission, not in any agency, permissive or other representative capacity. All questions of both ownership and agency being settled by this stipulation, our statutes establishing prima facie ownership and agency in a registered owner are without application.

United States Fidelity & Guaranty Co. v. Allen, 158 Tenn. 504, 14 S.W.(2d) 724, is not contra or controlling. There the bus was being driven by an agent of the owner and on the business of the owner. The question was who was to be treated as in law the owner. This court denied to the registered owner the right to repudiate its ownership, established prima facie by application of the statutory provisions now contained in Code, §§ 2701, 2702, for the reasons assigned in that opinion. The registered owner being thus held to be in law the owner, and the driver being the agent and on the business of the owner, liability followed.

The determinative distinction is clearly recognized and applied in the recent case of Bright et al. v. Neal et al., 168 Tenn. ___, 73 S.W.(2d) 686, 687. This language of Mr. Justice Cook, speaking for the court in that case, is directly in point here:

"If it be conceded that the vehicle here was still in law the property of the original owner, still there is no showing that it was being used in connection with any business of his. He had sold the vehicle to a dealer and the dealer had sold it to a third person. The truck was not being used in a business which by his license and his bond the former owner represented to the public was a business of his own. To hold the owner of an automobile liable for its operations, it must be ordinarily shown that the driver was, at the time of the accident, in the master's business and acting within the scope of his employment. Goodman v. Wilson, 129 Tenn. 464, 166 S. W. 752, 51 L. R. A. (N. S.) 1116.

"It appearing from the undisputed proof that the driver was not the agent or employee of the registered owner, but that Bright was using the truck in the business of Bright and...