Good v. Tennessee Coach Co.

• Decision Date: 06 December 1947
• Citation: 209 S.W.2d 41,30 Tenn.App. 575
• Parties: GOOD v. TENNESSEE COACH CO.
• Court: Tennessee Court of Appeals

209 S.W.2d 41

30 Tenn.App. 575

GOOD v. TENNESSEE COACH CO.

Court of Appeals of Tennessee, Middle Section.

December 6, 1947

Certiorari Denied by Supreme Court March 5, 1948.

Appeal in Error from Circuit Court, Rutherford County; John D Wiseman, Judge.

Action by B. C. Good against Tennessee Coach Company for personal injuries and damages. From the judgment, defendant appeals in error.

Judgment affirmed, and judgment entered in the Court of Appeals in accordance with opinion.

Geo. S. Buckner, of Murfreesboro, for plaintiff.

Alfred B. Huddleston and Clarence L. Cummings, both of Murfreesboro and Manier & Crouch, of Nashville, for defendant.

FELTS Judge.

Plaintiff and his horse were struck by a bus, and he brought this action for damages. At the close of the evidence for plaintiff defendant's motion for a directed verdict was overruled, and it offered no proof but stood on its motion. There was a verdict and judgment for plaintiff for $8,950-$8,500 for the injuries to his person and $450 for the loss of his horse. Defendant appealed in error and insists that a verdict should have been directed for it.

The accident occurred about 8:30 A. M. March 15, 1946, at a point some eight miles east of Murfreesboro on the highway leading from Murfreesboro to Woodbury. According to the evidence for plaintiff, he was riding his horse and leading a mule west along the gravel shoulder on his right or the north side of the highway. As he was approaching the crest of a hill and meeting a truck coming east, the bus, overtaking and passing this truck, turned to its left or the north side of the highway, ran over on the shoulder, struck plaintiff and his horse, killed the horse, and seriously injured plaintiff.

The bus stopped and the driver got out. At about the time the bus stopped two trucks going west and another going east stopped, and the occupants got out, saw the bus and the driver, and saw plaintiff and the horse lying on the side of the road. Plaintiff was taken in one of these trucks to a hospital in Woodbury, and the bus proceeded on to Woodbury. These witnesses at the scene described the appearances, identified the bus as defendant's but none of them got its license number.

Defendant makes no question upon the amount of the verdict or the negligent operation of the bus. Its sole insistence is that, there being no proof of registration, the evidence for plaintiff was insufficient to make a prima facie case of respondeat superior or the relation of master and servant--insufficient to permit the jury to find that the bus was being operated by its servant in its business at the time of the accident.

We must take the strongest legitimate view of the evidence in favor of plaintiff, construe it most favorably to him, and indulge all reasonable inferences to uphold the verdict. Western Union Tel. Co. v. Lamb, 140 Tenn. 107, 203 S.W. 752; Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Tenn. 551, 249 S.W. 984; Osborn v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510. Upon such a view of the evidence, we find it tended to prove these circumstances.

The highway between Murfreesboro and Woodbury is a main, much traveled thoroughfare, and is designated as U.S. Highway No. 70-S and Tennessee Highway No. 1. The evidence was that the defendant, Tennessee Coach Company, daily operates a regular schedule of passenger service over this highway, using large busses suitable for this purpose. It has a regular bus stop or station in Woodbury.

Plaintiff said the bus which struck him was one of the busses of defendant and of the same kind that he had been seeing operated by defendant daily upon this highway. Two or three other witnesses, who were at the scene and saw the bus while it was stopped there, likewise identified it. They saw upon its side the name 'Tennessee Coach Company.' They also saw a man there with a uniform on similar to the uniform regularly worn by defendant's bus drivers. This same man was later seen by some of the witnesses with the bus, while it was stopped at defendant's regular bus stop in Woodbury.

One of the witnesses at the scene, Forrest Tassey, saw the name 'Tennessee Coach Company' on the side of the bus. On his cross examination he said: 'A. Well, I have rode with the driver and I knew he was a Tennessee Coach driver and I also know that the bus is a Tennessee Coach, and I ride with them all the time.'

At the place of the accident, while the bus was stopped there, some of the witnesses saw that there were 'passengers' or people in the bus. The witness Rollins said: 'Q. Now, were there any passengers on this bus, any people riding in it? A. I think there was some, I don't know how many.' The witness Tassey said: 'Q. Did you see any people in the bus? A. There were several people on the bus.'

Don Kelley, a member of the State Highway Patrol, was notified of the accident by telephone. He immediately went from Murfreesboro to the scene, and saw the dead horse, the dual tire tracks, and the broken glass there. He then proceeded on to Woodbury, and saw defendant's bus stopped at its regular stopping place. The left front headlight was broken out, and there was a dent in the left front of the bus. He also noticed on the front hairs apparently like those of the horse.

Other witnesses saw the man with the bus at Woodbury with the driver's uniform on, and identified him as the man they had seen at the place of the accident. The State Highway Patrolman talked to this driver about the accident, but, of course, was not permitted to relate anything that was said in their conversation.

In their brief learned counsel for defendant say that the evidence of defendant's name upon this bus permitted an inference of defendant's ownership of the bus, that from this inference of ownership there may also be a statutory presumption that the bus was being used with the owner's permission, but that this is as far as the inferences and presumptions go, because there was no proof of registration and no statutory presumption that the bus was at the time being operated and used in defendant's business.

We cannot follow this argument. These statutes, Code, §§ 2701, 2702, making proof of ownership of a motor vehicle prima facie evidence that it was being operated with the owner's consent, and making proof of its registration prima facie evidence that it was being operated by the owner or his servant in his business, merely added a new and easier mode of proof of the master-servant relation between the owner and the driver of such a vehicle.

They did not affect the pre-existing general rule of the common law that such proof could be made by circumstantial evidence. That common law rule was, and still is, that a prima facie case of respondeat superior, or the relation of master and servant, may be made by evidence of these circumstances: (1) that defendant was owner of the offending vehicle; (2) that it was being operated by a person generally employed by the owner as his servant; and (3) that at the time of the accident the vehicle was being operated under conditions resembling those which normally attended its operation in the master's business. Frank v. Wright, 140 Tenn. 535, 205 S.W. 434; Western Union Tel. Co. v. Lamb, 140 Tenn. 107, 203 S.W. 752; cf: Davis v. Newsome Auto Tire and Vulcanizing Co., 141 Tenn. 527, 213 S.W. 914; East Tennessee & Western North Carolina Motor Transp. Co. v. Brooks, 173 Tenn. 542, 121 S.W.2d 559.

It is true these circumstances cannot be made out by conjecture or speculation, but must be proved by evidence. Such evidence however, need not rise to that degree of certainty which will exclude every other reasonable conclusion. It is enough if such evidence make out these circumstances as the more probable hypothesis--if...