Bowers v. Potts

• Citation: 617 S.W.2d 149
• Decision Date: 13 March 1981
• Docket Number: No. 80-12-II,80-12-II
• Parties: Betty BOWERS, Executrix of The Estate of Fred Wilson Weatherly, Deceased, Plaintiff-Appellant, v. Erving L. POTTS, and J. W. Petty Construction Company, Inc., Defendants- Appellees.
• Court: Tennessee Court of Appeals

Page 149

617 S.W.2d 149

Betty BOWERS, Executrix of The Estate of Fred Wilson Weatherly, Deceased, Plaintiff-Appellant, v. Erving L. POTTS, and J. W. Petty Construction Company, Inc. Defendants- Appellees.

No. 80-12-II

Court of Appeals of Tennessee, Middle Section.

March 13, 1981 Certiorari Denied by Supreme Court June 1, 1981.

Thomas L. Reed, Jr., Murfreesboro, for plaintiff-appellant.

Michael Murphy, Murfreesboro, for defendants-appellees.

OPINION

CONNER, Judge.

(Filed with concurrence of participating judges)

In this wrongful death case, the jury found against both defendants. As to one defendant, the master, the trial judge set aside the verdict and dismissed. As to the other defendant, the servant, the trial judge approved the verdict and entered judgment for the plaintiff. The servant has not appealed, but plaintiff has appealed from the dismissal of the master.

On Saturday, August 19, 1978, at approximately 1:00 p. m., Fred Wilson Weatherly and Erving L. Potts were involved in a vehicular accident at the intersection of Almaville Road and Poplar Wood Road in Rutherford County. Weatherly died at the scene. His executrix brought the instant action against Potts. Subsequently, that suit was amended to include J. W. Petty Construction Company (hereafter "Petty") as a party defendant. In the amended complaint, plaintiff alleged that Potts was an employee of Petty and was at the time of the accident in the course and scope of his employment with authorization from his employer. Through every stage of the proceeding Petty vigorously contested the proposition that Potts was engaged in the business of the employer or that Potts had authority to represent him. At the conclusion of discovery, Petty filed a motion for summary judgment; at trial, both after plaintiff's proof and defendants' proof, Petty moved for a directed verdict. All of these motions were denied by the trial court, and the question of the applicability of the doctrine of respondeat superior was submitted to the jury. However, after return of a verdict for $75,000.00 against both the defendant Potts and the defendant Petty, the trial court granted the motion of defendant Petty to set aside the verdict as to it, denying a like motion by Potts. Plaintiff appeals that ruling.

There has been no appeal by Potts and no complaint to this court concerning the determination of fault as to Potts or the amount of the verdict. Accordingly, we will only review the proof adduced on the master-servant question as between Petty and Potts to determine if there was any material and credible evidence to support the verdict of the jury that Potts was indeed the agent of Petty at the time of the accident. See Vaughn v. Shelton, 514 S.W.2d 870 (Tenn.App.M.S.1974). If so, we must reverse. If not, we must sustain the trial court.

Unlike the situation where the court may act as the thirteenth juror and order a new trial, a verdict must be directed during trial or post-trial only where there is no reasonable basis for sustaining the verdict.

On review of the grant of a directed verdict on motion of a defendant, it is not the office of an appellate court to weigh the evidence. Rather, it must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable inferences in his favor, and disregarding any evidence to the contrary. The trial judge's action may be sustained only where the evidence is uncontradicted and a reasonable mind could draw only one conclusion. Keller v. East Tennessee Production Credit Association, 501 S.W.2d 810 (Tenn.App.E.S.1973).

Is the competent evidence negating agency so uncontradicted as to justify the extraordinary action of the trial court in ignoring the verdict of the jury? We think so.

Uncontroverted facts are that Petty, a Kentucky corporation with its principal office in Bowling Green, contracted with South Central Bell (hereafter "Bell") to lay underground conduit from the Bell office in Smyrna to the west edge of town. As a part of the construction project, it was necessary to extract dirt and other underground soil material in various amounts and of various types from the route of the underground conduit. It was known prior to the start of construction that there would be some topsoil or "good" dirt excavated and some soil material composed in large part of rock, pavement fragments, debris or other generally "bad" soil material incapable of supporting vegetation known as "overburden." Further, it was known that there would be some excess soil materials which, at least initially, would not be replaced in the trenches. But, after settling, more dirt would be required. Accordingly, prior to beginning the work in May of 1978, Petty made arrangements with Bell to store, on a lot owned by it in Smyrna, excess "good soil" excavated during the project. There was the further understanding that since the Bell lot had some low areas if, at the conclusion of the work, there was excess good soil, it would simply be left on the Bell lot. Similar arrangements were made before any construction with a local business. Smyrna Hardware and Lumber Company, to deposit excess "overburden" or "bad soil" on its lot which was also low and in need of fill. Both of these locations were within the city limits of Smyrna and within a mile of each other.

Defendant Potts was the owner of a dump truck. After work on the project was commenced by Petty in June of 1978, Potts was initially hired by Petty for the purpose of hauling dirt from the project as needed and paid on an hourly basis.

The project did not proceed to the satisfaction of Petty, and on July 10, 1978, Potts was hired as the job foreman of Petty. After assuming this capacity, Potts became a salaried employee and also leased his dump truck to Petty at the rate of $15.00 per hour. Potts was still serving in the capacity of foreman on the date of the accident, though he was terminated on September 22, 1978, approximately one week before the project was completed. As the job foreman Potts had day to day responsibility for the progress of the work, though "two to three days a week," either Billy Petty or E. A. Sanson, representatives from the home office of Petty, would visit the job site. They kept close contact with the progress of the job and were the direct superiors and supervisors of Potts. One of the things that Billy Petty did was to advise Potts of the respective arrangements in regard to storage of surplus "good soil" and "overburden" storage and disposal on the lots of South Central Bell and Smyrna Hardware and Lumber Company, respectively.

August 19, 1978, the date of the accident, was a Saturday. There were no workmen on the job on that Saturday, or on any other Saturday. At the time of the accident defendant Potts was hauling a load of dirt in his dump truck from the Bell lot to the property of one Earl Terrell. He was paid by Mr. Terrell not Petty for hauling dirt on this occasion and at prior and subsequent times. Further, he asked for and received nothing from the defendant Petty for either his labor or the use of his truck on that or any other Saturday. All of these facts are uncontroverted.

The theory of liability on the part of Petty follows: Only "good soil" (as opposed to "overburden" or "bad soil") was to be left on the Bell lot. Some "overburden" got on the Bell lot (though exactly how, it is not clear), and Potts concluded that it had to be moved in the performance of the work that Petty had contracted to do. Rather than move it 3/4 of a mile to the Smyrna Lumber and Hardware Company lot during the week at company expense, Potts made the judgment in his capacity as foreman to move it 41/2 miles to the property of Earl Terrell on Saturday; thus, the plaintiff asserts that Petty was liable even though it was not on a workday, even though Potts was being compensated by Terrell and not by Petty, and even though Petty was deriving direct personal benefit from his labors. Potts testified that by hauling off the "overburden" on Saturday it was saving Petty the expense of renting a truck, paying a truck driver and paying the operator of a loader. Further, and most significantly, on the question of authority from his employer, defendant Potts testified that he had discussed with Billy Petty and received authorization from him to remove the "overburden" from the Bell lot and to dispose of it.

To the contrary, portions of the deposition of Billy Petty taken prior to the trial were introduced, and W. A. Sanson testified at trial. These witnesses categorically denied any knowledge of the extra labors of Potts on this Saturday or any other. They denied that there had ever been any conversation about removing any dirt from the Bell lot for any purpose other than to refill and replenish the ditches where the cable had been laid after settling. They affirmatively stated that any extra soil, whether good or bad, could and should have been left on the Bell lot to fill low spots unless moved to Smyrna Hardware and Lumber Company. Further, they said that at the time Potts was hauling the dirt to Terrell's, it was impossible to know whether all or some of it would be needed to put back into the project. To prove this last point, defendant Petty proved that there was, in fact, insufficient fill dirt on the Bell lot to complete restoration of the line and that some dirt had to be obtained from other sources for that purpose near the completion of the project.

If that were the sole state of the proof, we would clearly be left with a jury decision on the question of agency and on the motivating intent of Potts. Stated another way, the question would be what was the actuating motive of Potts? See W. Seavey, Law of Agency § 150 (1964); Restatement (Second) of Agency § 228 (1958). ¹ The jury could have concluded that even though Potts was also advancing his own interests, he was intending to further the business of his employer at the same time. See...