Earley v. Roadway Express

• Decision Date: 06 August 1952
• Docket Number: Civ. A. 1763,1764.
• Citation: 106 F. Supp. 958
• Parties: EARLEY et al. v. ROADWAY EXPRESS, Inc. WILKERSON v. ROADWAY EXPRESS, Inc.
• Court: U.S. District Court — Eastern District of Tennessee

106 F. Supp. 958

EARLEY et al. v. ROADWAY EXPRESS, Inc.

WILKERSON v. ROADWAY EXPRESS, Inc.

Civ. A. 1763, 1764.

United States District Court E. D. Tennessee, Northern Division.

August 6, 1952.

Hodges & Doughty, Knoxville, Tenn., for plaintiff.

James W. Mitchell, Taylor H. Cox, Knoxville, Tenn., for defendant.

ROBERT L. TAYLOR, District Judge.

These cases are before the Court upon motion of defendant in each case for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S. C.A. The first ground of the motion is that plaintiff in neither case is entitled to exemplary damages for the reason that the defendant in each case was not guilty of any willful or wanton act authorizing a jury to pass upon that question. Defendant, therefore, moves the Court to strike from the respective complaints any and all claims for exemplary damages. This portion of the motion is sustained.

The two suits grew out of a highway accident at the intersection of U. S. Highway 70 and U. S. Highway 25-E, near Newport, Tennessee. A trailer-tractor of defendant, traveling westward on Highway 70, collided with the automobile of decedents, who were traveling south on Highway 25-E. As a result of the accident both Wilbur V. Earley and his wife, Faye E. Earley, were killed.

In civil action No. 1763 it is averred that Faye E. Earley survived her husband for a short time. Hence, under the statute, she would have been entitled to recover, along with his parents, for his death. Under the survivor statute, the theory is that her cause of action passed to her administrator. Hence, the parents of Wilbur V. Earley and the administratrix of his deceased widow join as plaintiffs in this action.

In cause No. 1764, it is averred that a cause of action arose for the wrongful death of Faye E. Earley and that her action survived to her administratrix, Brama J. Wilkerson, who is the plaintiff in this case.

Plaintiff in each case avers that defendant was guilty of common law negligence, and also violated Section 2681; Section 2682(a), (b) Second, Third and Fourth; (c) First, Second, Fourth and Sixth; Section 2682.1; Section 2685; and Section 2687(a) and (b) of the Tennessee Code.

Plaintiff further avers that defendant's negligence was gross and wanton, and that plaintiff is, therefore, entitled to exemplary damages, as well as compensatory damages.

In Tennessee, exemplary damages may be added to compensatory damages, where the wrongdoer behaved so wantonly or grossly as to show a willingness to inflict the injury. As a general rule, however, wantonness may not be imputed to the master or principal of the wrongdoer, where the wrongdoer is a servant or agent. Three exceptions to this general rule are generally recognized. They are

(1) Where the master is under contract-imposed duty, or law-imposed duty, requiring him to refrain from mistreatment of the contractee. This relationship would exist between a railroad company and a passenger. Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557, 46 L.R.A. 549.

It would exist, also, between a cab company and a passenger in one of its cabs. Jenkins v. General Cab Company of Nashville, Inc., 175 Tenn. 409, 135 S.W.2d 448.

(2) Where the nature of the employment or duty imposed on the servant is such that the master must contemplate the use of force by the servant in performance, as a natural or legitimate sequence. Cases of this character arise where guards or watchmen are entrusted with weapons and told to keep off trespassers, thieves, and other wrongdoers. Eichengreen v. Louisville & N. R. Railroad, 96 Tenn. 229, 34 S.W. 219, 31 L.R.A. 702; Union Railway Company v. Carter, 129 Tenn. 459, 166 S.W. 592; Terry v. Burford, 131 Tenn. 451, 175 S.W. 538, L.R.A.1915F, 714.

A variation on this exception may be found where the force employed by the servant in the...