Foster-Herbert Cut Stone Co. v. Pugh

• Decision Date: 13 January 1906
• Citation: 91 S.W. 199,115 Tenn. 688
• Parties: FOSTER-HERBERT CUT STONE CO. v. PUGH.
• Court: Tennessee Supreme Court

91 S.W. 199

115 Tenn. 688

FOSTER-HERBERT CUT STONE CO. v. PUGH.

Supreme Court of Tennessee.

January 13, 1906

Error to Circuit Court, Davidson County; Jno. W. Childress, Judge.

Action by Hattie Pugh against the Foster-Herbert Cut Stone Company. From a judgment for plaintiff, defendant brings error. Reversed.

J. M. & Douglas Anderson, for plaintiff in error.

K. T McConnico and W. H. Washington, for defendant in error.

BEARD C.J.

This action was brought to recover damages for the death of a boy about 6 years of age, resulting, as is alleged, from the actionable negligence of the plaintiff in error. The facts are that the mother of the deceased was employed in a factory of Nashville, and on the day of the accident had left the boy at and in the care of a charitable institution located near the place of her employment, where a large number of children of tender years were cared for during the day and while their parents were absent from their homes at work. At that time some improvements were being made upon the building occupied by those in charge of the institution, and the plaintiff in error contributed the stone needed for that purpose, and sent its wagon under the charge of a careful driver to deliver the stone. The plaintiff in error had knowledge of the character of this institution and that daily a great many small children were assembled at it and cared for by its managers.

The wagon used upon this occasion was one constructed for and adapted to the purpose of receiving and delivering stone, and its only peculiarity was that its bed, instead of being raised above the axles, was below them, and so was nearer the ground than a bed of a farm or any other wagon in general use. At the time this delivery took place many children of various ages and sizes were playing on the premises of the institution. Upon the approach of the wagon a number of these children were attracted to it, and some of them as it entered the premises climbed upon it, but under the direction of the driver at once dismounted.

After the wagon stopped, and while the stones were being unloaded the children in considerable numbers gathered around and were eager to get upon it, but were forbidden by the driver, who said to them, however, "Wait until I am rid of this load, and then I will give you a ride." Immediately after the work of unloading was finished, several of these children clambered upon the wagon, and the driver started upon his return trip. After riding a short distance they began one after another to dismount, and in undertaking to do likewise the deceased either fell or jumped to the ground between the wheels, and one of these passing over his body, so badly injured him that he soon afterwards died.

It is also in evidence that young Pugh called to the driver once, if not twice, to stop and let him get down, but, either disregarding the call if heard, or else not hearing it, the driver did not stop, so that the boy, while undertaking to leave the wagon still in motion, or falling, received the injury complained of.

The declaration contains three counts. The case was rested for the plaintiff, however, upon a fourth count, embraced in an amended declaration, which in substance averred that the defendant sent upon the premises in question a wagon of such nature and description as to be both dangerous and attractive to children, great numbers of whom the defendant knew were left during the day by their parents; that the driver in charge of the wagon was incompetent and unfit; that the defendant failed to provide sufficient servants to deliver the stone, and negligently failed to provide any safeguard or protection while the wagon was being unloaded; and that when it was leaving the premises, its driver having negligently permitted the deceased to mount the wagon, the latter fell therefrom and was fatally injured.

Upon the trial of the issue made by a plea of not guilty, the testimony of the plaintiff disclosed the facts as set out in the beginning of this opinion. At its close the defendant demurred to the evidence, and, its demurrer being overruled, the case went to the jury to ascertain the damages sustained, whereupon a verdict was returned in favor of the plaintiff for $2,500. From the judgment thereon the defendant has prosecuted an appeal in the nature of a writ of error.

From a careful examination of this record we are unable to discover any legal ground upon which the verdict and judgment can rest. The case made out is one where a skillful driver is placed in charge of his master's wagon, with direction that he deliver pieces of dressed stone at a place where they are to be used in making some improvement. Having arrived there and unloaded the stone, a number of children, who were gathered about, in answer to his invitation got upon the wagon to enjoy a ride, and while riding away from the premises one of these children, either in falling or undertaking to jump from the wagon, is run over by one of its wheels and is so injured that death soon results. It is not claimed that the driver was either expressly or by implication authorized by his master to extend the invitation to the children to get upon the wagon, or that this act of the servant was in any sense or degree within the scope of his employment or in furtherance of his master's business. Under these facts we think is is well settled the master cannot be called upon to respond in damages for the injury resulting from such unauthorized act. Puryear v. Thompson, 5 Humph. 397; Cantrell v. Colwell, 3 Head, 472; Diehl v. Ottenville, 14 Lea, 191.

These cases lay down the rule which we think controlling here, but many are to be found where the rule has been applied to acts very similar to those presented in this record. In Driscoll v. Scanlon, 165 Mass. 348, 43 N.E. 100, 52 Am. St. Rep. 523, the facts were that a boy of nine accepted the invitation of a driver of a dump cart, belonging to the defendant, to get upon the cart and take a ride, during which the boy was injured.

In an action against the master to recover for the injury, in sustaining the ruling of the trial court that on these facts there could be no recovery, the Supreme Court said: "It was not within the scope of the employment of the driver of the dump cart to invite persons to ride upon it for their pleasure"--citing Bowler v. O'Connell, 162 Mass. 319, 38 N.E. 498, 27 L. R. A. 173, 44 Am. St. Rep. 359; Powers v. Boston & M. R. R. Co., 153 Mass. 188, 26 N.E. 446. In Morris v. Brown, 111 N.Y. 318, 18 N.E 722, 7 Am. St. Rep. 751, it is said: "Where a servant is employed to manage a dump cart hauling stone and other material out of a tunnel, he has no authority to assent to a third person riding in his car, and his permitting such person so to ride is not equivalent to an invitation by his master, and cannot make him answerable for acts or omission in the management of the car from which the person so riding is killed or suffers substantial injuries." So, in Cook v. Houston, etc., Navigation Co., 76 Tex. 353, 13 S.W. 475, 18 Am. St. Rep. 52, it was held that where a minor child was drowned, through having been invited on the tug...