Graham v. Miller

• Decision Date: 05 May 1945
• Parties: GRAHAM et al. v. MILLER.
• Court: Tennessee Supreme Court

187 S.W.2d 622

182 Tenn. 434

GRAHAM et al. v. MILLER.

Supreme Court of Tennessee.

May 5, 1945

Error to Circuit Court, Marion County; Alan S. Kelly, Judge.

Action by Blanche Hughes Miller against J. H. Graham and another for the death of plaintiff's minor son. A judgment for plaintiff was affirmed by the Court of Appeals, and the Supreme Court granted a certiorari.

Judgment reversed, and action dismissed. CHAMBLISS Justice.

Raymond Lee Miller, a twelve year old boy, was run over and killed by a truck of which his father, Ray Miller, was the driver, and of which he had charge as the employee of J. H. and Paul Graham, owners of the truck. Ray Miller was employed by the Grahams to drive this truck in the delivery of milk from a dairy operated by them. The action was brought by the mother as administratrix, against the owners of the truck only charging that a defect in the truck, for which the owners were responsible, was a contributing cause of the injury. A judgment for $2,500 was had, affirmed by the Court of Appeals. This Court granted certiorari.

While the proof clearly shows, and it is undisputed, that Ray Miller, in charge of the truck, was guilty of negligence, he was not joined as a defendant, in recognition of the well-settled rule that a minor child cannot maintain a tort action against a parent. McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991, 102 Am.St.Rep. 787, 1 Ann.Cas. 130. And see 39 Am.Jur., p. 735, citing numerous cases from other jurisdictions.

Nor can an administratrix, in which capacity this suit is brought by the mother, maintain a tort action for the wrongful death of her intestate if he, in his lifetime, could not maintain the action. McCreary v. Nashville, C. & St. L. Ry., 161 Tenn. 691, 695, 34 S.W.2d 210. If the beneficiary cannot recover, neither can an administrator. Anderson v Memphis St. Ry. Co., 143 Tenn. 216, 219, 227 S.W. 39.

Another proposition equally well settled in this jurisdiction is that a master is not liable under the doctrine of respondeat superior, unless the servant is liable. Loveman Co. v. Bayless, 128 Tenn. 307, 160 S.W. 841, Ann.Cas.1915C, 187; Raines v. Mercer, 165 Tenn. 415, 55 S.W.2d 263; MaHaffey v. MaHaffey, 15 Tenn.App. 570; Summers v. Bond-Chadwell Co., 24 Tenn.App. 357, 372, 145 S.W.2d 7. For like holdings outside of this State, see Meece v. Holland Furnace Co., 269 Ill.App. 164, citing numerous cases. (Annotated in 116 A.L.R. 650.)

It is true that it has been held in one or more other jurisdictions that, while a child cannot recover against his father for a tort, the child may nevertheless recover against the master, or employer of the father, when the injury resulted from the negligence of the father, acting within the scope of his employment, upon the theory that the immunity granted by public policy against suit by his child does not extend to and exempt the employer. The leading case so holding is Chase v. New Haven, etc., Corporation, 111 Conn. 377, 150 A. 107, 68 A.L.R. 1497, wherein the annotator observes (p. 1500) that this case is 'one of first impression upon the specific question.' In 116 A.L.R. 639, the case of Mi-Lady Cleaners v. McDaniel, 235 Ala. 469, 179 So. 908, is reported, and the annotation on page 650 refers to other holdings both ways on this question. But the question is not an open one in this State, where the derivative doctrine of liability of the master for the negligence of the servant is recognized. See Loveman Co. v. Bayless, and other cases above cited. Moreover, these cases are not in point here where, while the defendants are the employers of the father, the action is for alleged independent negligence of the employers.

While recognizing the rule in respondeat superior cases to be as laid down in Loveman Co. v. Bayless, supra, the Court of Appeals rests its affirmance upon the theory that the defendants, owners of the truck being used at the time of the accident on their business, are liable independently of their relationship as master because the proof shows that they were negligent in sending out the truck with a mechanical defect which contributed to the accident; that, in this situation, this action may be maintained against them for this independent negligence as joint tort-feasors with the father. By basing the right of action upon this theory, plaintiff has sought to avoid application of our rule above mentioned, which applies when the liability of the master rests alone upon the negligence of the servant, and also the general rule which precludes recovery by the child against the father.

We have thus presented a situation with which this Court has not heretofore been called upon to deal, raising, as above indicated, the question whether or not, on such facts, an independent action may be maintained against the owner of the truck without violation of the rule which precludes recovery for a tort by a minor against a parent.

A further statement of the facts is called for. On the day of the accident, Ray Miller was returning from a delivery of milk to Camp Forrest, at Tullahoma, Tennessee. His son, the deceased, was accompanying his father on this trip. Ascending the mountain to Monteagle, Miller found the motor of the truck to be missing, or skipping. He stopped at a filling station at Monteagle for mechanical assistance. The foot clutch pedal of the truck had been from time to time sticking when pressed in to dis-engage the clutch. This was the defect responsibility for which is charged to the owners, and of which they, and also their driver, Ray Miller, were aware. In stopping the truck at the filling station, Miller, as is customary, pushed down the pedal, thus dis-engaging the clutch. Without throwing the lever provided for that purpose, and thus definitely and safely dis-engaging the clutch, and without securing the truck against movement by the use of the handbrake, Miller dismounted leaving the engine running, relying solely upon his expectation that the foot pedal would remain in its pressed in or down condition. A mechanic began inspection of and work upon the motor. Meanwhile, the young son of Ray Miller stepped to the front of the truck and stood there watching the mechanic. As a result, apparently, of some slight jar to the motor, the foot clutch sprang back into its natural position when free from foot pressure, and the clutch becoming engaged, the truck moved suddenly forward and struck and killed the boy.

Conceding but not deciding, that the negligence of the defendants, on these facts, so contributed to the injury as to constitute one of two proximate causes thereof, the driver and the owners were joint tort-feasors and liable as such, and, under the recognized general rule, subject to be sued either jointly or independently. But, may an action be maintained as here against one joint feasor when the other is the parent of the plaintiff's minor...