Green v. Powell
| Decision Date | 03 November 1938 |
| Docket Number | No. 2.,2. |
| Citation | 124 S.W.2d 269 |
| Parties | GREEN v. POWELL. |
| Court | Tennessee Supreme Court |
Raulston & Raulston, of Jasper, for plaintiff in error.
Tom Kelly, of Jasper, and Williams & Williams, of Chattanooga, for defendant in error.
J. R. Green, alias Dutch Eggert, has appealed in error to this court from a judgment based upon a jury verdict in the sum of $4,000 in favor of Mrs. Alice Powell who sustained personal injuries when Green's car, driven by one Gurney Lofty, collided with the automobile in which she was riding.
Lofty was a defendant below but has not appealed. It is now conceded that there is material evidence to support the finding of the jury that the Green car was being negligently operated at the time of the collision and that the driver's negligence was the proximate cause of Mrs. Powell's injuries. It is insisted, however, there is no evidence to support a finding that on October 11, 1937, the date of the collision, the driver was in Green's employ and at the time engaged upon a mission for him.
Several of the assignments draw in question the conclusions of the circuit judge in overruling the motion for a new trial. A purported transcript of these comments appear within the transcript though neither incorporated within the bill of exceptions nor entered upon the minutes. This document does not appear to have been filed by the clerk and hence cannot be considered as a separate part of the bill of exceptions though appearing to bear the authenticating signature of the trial judge. The motion to strike the pages of the transcript upon which these remarks appear must, therefore, be sustained.
We shall not attempt to discuss each assignment separately but proceed at once to a consideration of whether the court erred in submitting to the jury the issue of the alleged agency relationship between Green and Lofty. It was shown that the car driven by Lofty was registered in Green's name, giving rise to the statutory presumption that, at the time of the collision, it was being operated with Green's consent, proof of registration being prima facie evidence that it was being operated by his agent within the course and scope of his employment. Code, Sec. 2702. It is insisted by defendant, however, that this presumption vanishes when it is made to appear by uncontradicted proof that the car was, in fact, not being operated by the owner's servant or agent within the course and scope of his employment and that in such case upon motion for a directed verdict the question becomes one of law for the court to determine. The case of Woody v. Ball, 5 Tenn.App. 300, 302, is relied upon to support defendant's insistence that the court erred in submitting this issue to the jury.
It was held in that case that proof of registration did not constitute substantive evidence of the agency relationship and that the jury is not warranted in determining that issue in favor of plaintiff where the uncontradicted proof shows that no such relationship existed at the time the alleged tort was committed. On the other hand, it is insisted by plaintiff in this case that the jury could properly base its finding upon proof of registration alone because all of the witnesses introduced by defendant were impeached and discredited and their testimony contradicted by the testimony of plaintiff's witnesses.
While, as held in Woody v. Ball, supra, the jury cannot arbitrarily or capriciously disregard the testimony of credible witnesses introduced for the purpose of obviating the effect of the statute, we are of opinion the effect of proof of registration is not so far overcome as to require the court to take the question from the jury by testimony, no matter how incredible, that the car at the time of the collision was being operated without the owner's consent and upon a private mission of the driver.
In Frank v. Wright, 140 Tenn. 535, 205 S.W. 434, 436, the issue was whether or not Frank, the owner, was liable for the tortious act of his chauffeur and whether the court should have directed a verdict in favor of the owner, the uncontradicted testimony of discredited and impeached witnesses showing the use of the car on the occasion in question, and the court said:
"If the jury should thus discredit the testimony of Frank on the point the use the car was put to on the occasion in...
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