Core v. Resha

• Decision Date: 08 July 1918
• Citation: 204 S.W. 1149,140 Tenn. 408
• Parties: CORE ET UX. v. RESHA.
• Court: Tennessee Supreme Court

204 S.W. 1149

140 Tenn. 408

CORE ET UX. v. RESHA.

Supreme Court of Tennessee.

July 8, 1918

Certiorari to Court of Civil Appeals.

Action by Isham Resha, a minor, by next friend, against W. W. Core and wife. To review a judgment of the Court of Civil Appeals reversing a judgment for plaintiff, plaintiff brings certiorari. Affirmed.

WILLIAMS J.

This is a suit by Isham Resha, a minor, to recover damages for personal injuries resulting from a collision of an automobile, alleged to be the property of Mrs. Core, with him, while he was standing on a sidewalk in front of the store of his father at the corner of Seventeenth avenue and Underwood street in the city of Nashville. The trial resulted in a verdict for the injured plaintiff, after a motion for a directed verdict in favor of the defendants below had been overruled.

On appeal the Court of Civil Appeals held that the motion for peremptory instructions interposed by the defendants below should have been sustained, and the case is before us on petition for and grant of certiorari.

There is ample proof that the chauffeur who drove the car was driving at an unlawful and reckless rate of speed when it approached the corner above referred to, where it skidded ran upon the pavement, and struck the child.

The crucial question is: Who was the employer of the chauffeur at the time of the injury? Dr. W. W. Core was the superintendent of the Davidson County Asylum, and the automobile in question had been purchased by him and given to his wife, and it was duly registered in her name. The county asylum is located on a pike about six miles from the city of Nashville. A branch of that institution is located about four miles from the main buildings. The entire institution is managed and controlled by a board of commissioners, who hold their meetings at the asylum.

The county provided no vehicle or mode of conveyance by means of which the commissioners might visit the asylum or its branch. Neither group of buildings is on a car line. The board of commissioners made a contract for the use of the automobile for that purpose on occasions of visits to the institution by its members; the county agreeing to pay for the upkeep of the machine and pay the wages of the chauffeur, in consideration of which its board of commissioners were to have the exclusive use of the automobile when called for by them. In order to call the machine into such use, it was necessary for the commissioners to notify and obtain the permission of Core or his wife.

On the day of the accident a meeting of the board was to be held at the asylum, and the chairman telephoned to the main building and ordered the car sent into the city for such use. An employé of the institution called the chauffeur and ordered him out on the trip in question.

The chauffeur served the Cores as dining room boy and as driver of the car, which was under their direction and control when it was not engaged in the service of the county's asylum commissioners. After the accident he left the state, and at the time of the trial could not be found.

The Court of Civil Appeals was of opinion, and ruled, that at the time of the accident the car was, in legal contemplation, in the possession of the chauffeur as the servant of the board of commissioners, and not of the Cores; and we hold with that view.

In Goodman v. Wilson, 129 Tenn. 464, 166 S.W. 752, 51 L. R. A. (N. S.) 1116, it was stated that the weight of authority as to the rule at common law is that an automobile is not a dangerous instrumentality; but a decision as to what was the effect of the Automobile Act (Acts 1905, c. 173; Shan. Ann. Code, § 3079a195 et seq.) upon the common-law rule was waived, as being unnecessary to a disposition of the case. However, in later cases (Leach v. Asman, 130 Tenn. 510, 172 S.W. 303, and Parker-Harris Co. v Tate, 135 Tenn. 509, 188 S.W. 54, L. R. A. 1916F, 935, in the last of which the act was under review) it was held that since the passage of said act an automobile is not to be deemed to be included with instrumentalities that are inherently dangerous, and this doctrine was reaffirmed at this term in the case of Coca-Cola Bottling Works v. Brown, 139 Tenn. 640, 202 S.W. 926.

In Goodman v. Wilson, supra, the basis of the common-law liability of an employer for negligence of his chauffeur was clearly defined. That liability, it was held, is to be tested by the rules governing master and servant. It was there 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 defendant's 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."

This is in line with the overwhelming weight of authority in this country, which is to the effect that, if a chauffeur uses a car wholly in a service not the owner's, either with or without the owner's permission, the latter is not liable to one injured by reason of a negligent operation of the car for the reason that he is not, in such use, acting within the scope of employment in the owner's business. These authorities are collected in the following cases and notes: Symington v. Sipes, 121 Md. 313, 88 A....