Delaney v. Turner
Decision Date | 14 July 1948 |
Parties | DELANEY v. TURNER. |
Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court Nov. 22, 1948.
Curry & Harris, Chattanooga, for plaintiff in error.
Schoolfield & Graham, Chattanooga, for defendant in error.
The parties will be referred to in their respective capacities in the Court below.
This suit grows out of certain injuries allegedly received by the plaintiff when struck by an automobile belonging to the defendant, on or about the 26th day of December, 1945, and at a point in the driveway of the Union Bus Terminal, corner of Tenth and Market Streets, in the City of Chattanooga Tennessee.
The plaintiff, Boedna C. Turner, recovered a judgment in the Court below against the defendant, Hobert Delaney, in the sum of $1,800 and costs. Defendant's motion for a new trial having been overruled an appeal in the nature of a writ of error was prayed granted and perfected to this Court.
Nine assignments of error are here filed by the defendant (plaintiff-in-error) which, in substance, challenge the action of the Court in failing and refusing to grant defendant's motion for a directed verdict and raise two principal questions for this Court's determination; (1) that the evidence fails to establish liability on the part of the defendant under the doctrine of respondeat superior, and (2) that there is no testimony to support the allegations of negligence as contained in the declaration.
The proof is meager concerning the actual occurrence of plaintiff's injuries. His own testimony with respect thereto was as follows:
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The plaintiff received numerous injuries, including damage to his teeth and bridgework, and wounds and abrasions on his head, body and limbs, some of which are anticipated to result in permanent impairment, but none particularly indicative of the manner received.
Only one other witness testified with respect to the accident. He was a porter who was working at the bus terminal. He was asked:
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The witness was further asked:
On cross-examination, the witness was asked:
Q. And when you first saw him the night of the accident he was getting up? A. Where the cab knocked him down, yeah.
Evidence was adduced to show that subsequent to the date of injury, the defendant admitted that it was his taxicab and his driver involved in the accident.
Upon an analysis of the pertinent facts before us, it appears that a taxicab, owned by the defendant and operated by an employee of the defendant, then present within a driveway customarily used by taxicabs and buses, was involved in an accident resulting in injuries to the plaintiff. Although recognizing the force of the authorities relied upon by the defendant, East Tennessee and Western North Carolina Motor Transportation Company v. Brooks, 173 Tenn. 542, 121 S.W.2d 559; Goodman v. Wilson, 129 Tenn. 464, 166 S.W. 752, 51 L.R.A.,N.S., 1116; Trimble v. Bridges, 1943, 27 Tenn.App. 320, 180 S.W.2d 590; 35 Am.Jur. 1031, Master and Servant, Sec. 593, and others relating to the doctrine of respondeat superior, we conceive the present case to be within the category discussed in Frank v. Wright 140 Tenn. 535, 205 S.W. 434, 435, wherein the Court quoted the rule as stated in Labatt, 6 Master and Servant, Sec. 2281a, as follows: 'A servant may be presumed prima facie to have been acting in the course of his employment, wherever it appears, not only that his master was owner of the given instrumentality, but also that, at the time when the alleged tort was committed, it was being used under conditions resembling those which normally attended its use in connection with its use in the master's business.' In other words, if the attendant circumstances disclose that a vehicle is being operated by one's servant under conditions normal to its customary use, the presumption arises that the same was being operated within the scope of the driver's employment. We are accordingly of the opinion that Assignments of Error Nos. 5, 6 and 7, which pertain to the application of the doctrine of respondeat superior, are without merit and should be overruled.
Upon consideration of the question of negligence, we are impelled to the...
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