Frank v. Wright

• Decision Date: 19 August 1918
• Citation: 205 S.W. 434,140 Tenn. 535
• Parties: FRANK v. WRIGHT.
• Court: Tennessee Supreme Court

205 S.W. 434

140 Tenn. 535

FRANK v. WRIGHT.

Supreme Court of Tennessee.

August 19, 1918

Certiorari to Court of Civil Appeals.

Suit by S. O. Wright, as administrator of Henry G. Wright, against Earnest Frank. From judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which affirmed, and defendant petitions for certiorari. Reversed and remanded.

Lansden J., dissenting in part.

Keeble & Seay and A. W. Stockell, Jr., all of Nashville, for plaintiff.

W. H Washington and J. G. Lackey, both of Nashville, for defendant.

WILLIAMS J.

This suit was instituted by Wright, as administrator of his 13 year old son, Henry G. Wright, to recover damages of Frank because of the death of young Wright, due to injuries inflicted by the automobile of Frank while it was being run on one of the principal streets of Nashville by Mills, the negro chauffeur of Frank. The circuit court rendered a judgment in favor of the administrator, based upon the verdict of a jury, which judgment was, on appeal, affirmed by the Court of Civil Appeals.

The petition for certiorari filed in this court, and the assignments of error, raise no question respecting the negligence of the chauffeur. The sole defense is that there was no competent or sufficient evidence that the chauffeur at the time the injuries were inflicted, was operating the automobile in furtherance of the business of his employer petitioner Frank. It is insisted that a motion for a directed verdict of nonliability should have been, and should now be, sustained.

It is undisputed that the automobile was the property of Frank, and that the driver in charge of it at the time of the accident was his regularly employed chauffeur. What is the effect of these facts to make a prima facie case of Mills being engaged at the time in operating the car in the line of the duty he owed his employer? In other words, to cast upon the owner of the car the burden of showing that there was a departure from the line of duty on the part of Mills?

The Massachusetts rule, followed in some other jurisdictions, is to the effect that mere proof of the ownership of the automobile by a defendant and that the chauffeur was his servant, does not make out a prima facie case for a plaintiff that the servant was at the time of the accident acting within the scope of his employment. The decisions of some of the other jurisdictions are sharply contradictory. Notes Ann. Cas. 1916A, 659, 46 L. R. A. (N. S.) 1091, and L. R. A. 1916A, 960.

The true rule is, we think, as stated by Labatt in 6 Master & Serv. § 2281a:

"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 our opinion the last phrase in the above quotation is a just qualification. No presumption of a servant's acting in the line of duty should be drawn unless time, place, and the other circumstances in shedding light upon the transaction, indicate that it was one within the scope of the driver's duty. For example, take an auto truck customarily used in a city for freight traffic. Though it be shown to belong to a defendant, and to be in charge of one regularly employed as his driver, there ought not to be raised such a presumption or inference, where at the time of the tortious act it was being driven to haul persons into the country. In the pending suit, however, the concomitant facts are not out of accord. It is shown that Belmont avenue, on which the automobile was being driven by Mills when the deceased was run over, is on the route from the residential section in which petitioner lived to the Jewish Golf Club, of which he was a member, and the accident happened in the afternoon of Saturday, the Sabbath of the race to which petitioner belongs. This avenue is one over which petitioner's automobile naturally might be expected to be operated, and where it was not infrequently seen in charge of Frank's chauffeur.

Did the petitioner, as defendant below, by proof adduced, rebut this prima facie case? Frank testified that the car was in use at the time without his knowledge or authority, and that the chauffeur was on no mission for him or for any member of his family, for whose use and pleasure the automobile was kept. Mills was alone in the car at the time of the accident. The members of petitioner's family testified that none of them had sent Mills on a mission. The chauffeur was not examined; he having left the jurisdiction shortly after the injuries were inflicted. There is no proof to the point that the chauffeur was out on a private mission of his own, though Frank is shown to have had a conference with the chauffeur before he absconded and might have learned of such private mission, had this been the case.

In this state of the proof it is insisted by the counsel of Frank that the facts did not warrant the submission of the case to the jury. It is urged that the defendant carried successfully the burden of showing that the chauffeur was not at the time acting for him.

This position would be unassailable if the testimony of Frank had been uncontradicted or unimpeached. The respondent, plaintiff below, contends that the jury was warranted in discrediting Frank, and testimony is referred to, showing that defendant was contradicted by witnesses of plaintiff on the point of his (Frank's) having been notified of reckless driving which had been done by Mills previous to the accident in question, and by his manner of testifying when replying to cross-questions. It is further claimed that discredit was cast upon petitioner's testimony by his refusal as witness to give the portion of the city in which there lived a young woman with whom he was intimately associated, as he admitted; plaintiff Wright's theory evidently being that the car was being driven by Mills to carry a message from Frank to her.

Ordinarily the testimony of a witness who is not contradicted, impeached, or discredited must be accepted as true; but, if the witness relied upon to establish a given fact be discredited or impeached, that fact may not be treated as established as a matter of law or for purposes of a motion for peremptory instructions. There must, it is true, be a substantial and more than colorable claim that the witness has been discredited; but, where this may by the jury be deemed to be sufficiently shown, the trial judge does not err in submitting the case to the jury.

We cannot follow the contention of Frank's counsel that his testimony, construable, as it was, as denying knowledge of previous reckless driving of his automobile by Mills, was evidence upon a point that was immaterial. One of the averments in plaintiff's declaration was that the chauffeur was unfit and reckless, and so known to be by Frank.

Neither can we approve as sound the contention that the jury may not reject the uncontradicted testimony of a witness "upon any kind of an attack that does not reach the legal requirement of testimony impeaching his...