Haggard v. Jim Clayton Motors, Inc.

• Decision Date: 16 August 1965
• Citation: 216 Tenn. 625,393 S.W.2d 292,20 McCanless 625
• Parties: Gladys H. HAGGARD, Petitioner, v. JIM CLAYTON MOTORS, INC., et al., Respondents. Nan M. LEWIS, Petitioner, v. JIM CLAYTON MOTORS, INC., et al., Respondents. 20 McCanless 625, 216 Tenn. 625, 393 S.W.2d 292
• Court: Tennessee Supreme Court

Page 292

393 S.W.2d 292

Gladys H. HAGGARD, Petitioner, v. JIM CLAYTON MOTORS, INC., et al., Respondents.

Nan M. LEWIS, Petitioner, v. JIM CLAYTON MOTORS, INC., et al., Respondents.

20 McCanless 625, 216 Tenn. 625, 393 S.W.2d 292

Supreme Court of Tennessee.

Aug. 16, 1965.

Claude K. Robertson, Robert L. Crossley, Fowler, Rowntree & Fowler, Knoxville, for petitioners.

Thomas W. Thomson, Knoxville, for Jim Clayton Motors, Inc.

Wallace F. Burroughs, Knoxville, for H. Scott Boyer, Jr.

WHITE, Justice.

These are companion suits filed in the Circuit Court for Knox County by Gladys H. Haggard and Nan M. Lewis, petitioners here, to recover from Jim Clayton Motors, Inc., and H. Scott Boyer, Jr., respondents here, damages sustained when Mrs. Haggard's automobile, in which Nan M. Lewis was riding as a passenger, was involved in a collision with a Renault automobile owned by Clayton Motors and driven at the time of the accident by one Howard Norman Daniel.

The defendant Boyer, respondent here, was a delinquent bill collector for defendant Clayton Motors, Inc. and other motor companies in the vicinity. Norman Daniel and Billy McCoy, two of Boyer's friends, occasionally helped him make collections.

The plaintiffs, petitioners here, charge in their declaration that the accident proximately resulted from the combined negligence of (1) Daniel in the operation of the vehicle; (2) the defendant Boyer, as the alleged agent of Clayton Motors, Inc., in entrusting the automobile to Daniel and McCoy with knowledge that neither of the two men were qualified operators of motor vehicles; and (3) the defendant Clayton Motors, Inc. in entrusting the automobile to Boyer with knowledge that he was not a qualified operator of a motor vehicle, was addicted to drink, associated with persons of dissolute character, and habitually permitted such persons to drive automobiles in his possession.

In the trial court the defendants filed special pleas, the substance of which was to deny that Boyer was an agent of the defendant Motor Company; to deny all allegations of negligence on their part; and to deny the giving of possession of the automobile to Daniel and McCoy. In addition thereto, the defendants asserted that the Renault automobile had been stolen from Boyer on the night of the accident.

Daniel, who is in prison, was not made a defendant and did not testify. The case was heard by the judge and jury and the verdict of the jury for Mrs. Haggard in the amount of $3,000.00, and in favor of Miss Nan M. Lewis in the amount of $7,000.00, against both defendants, was returned by the jury and was approved by the judge, and a money judgment rendered thereon in said amount. Upon their motion for a new trial being overruled, they appealed to the Court of Appeals and assigned error. In that court it was held that the trial judge should have directed verdicts for both defendants at the close of all of the proof. The cases were accordingly reversed and dismissed.

A petition for the writ of certiorari was filed by Mrs. Haggard and Miss Lewis in this Court, insisting that the Court of Appeals, among other things, erred in holding that the statutory presumption arising from proof of Clayton Motors, Inc. ownership of the car, under T.C.A. Sec. 59-1037, was displaced as a matter of law when evidence to the contrary was introduced.

Specifically, it is petitioners' insistence that such proof of non-agency must come from witnesses whose credibility is not in issue, and who are not contradicted; but that in this case the only such proof comes from the defendants Clayton Motors and Boyer, and McCoy, who is an admitted criminal.

It was undisputed that defendant Clayton owned the automobile which was involved in the collision, and for the purposes of this petition, we must assume that the injuries sued for were caused by the negligence of the driver, Daniel. Upon proof of these facts, without more, there arose under our statute (T.C.A. Sec. 59-1037), as amended, a prima facie case or presumption that the automobile was being operated by the owner or by his servant in his service. Sadler v. Draper, 46 Tenn.App. 1, 19, 326 S.W.2d 148 (1959).

The rule in this State, where evidence is offered in rebuttal to the presumption created by T.C.A. Secs. 59-1037, 1038, is that uncontradicted and unimpeached evidence causes the presumption to disappear. Hill v. Harrill, 203 Tenn. 123, 133, 310 S.W.2d 169 (1957); Bell Cab & U-Drive-It Co. v. Sloan, 193 Tenn. 352, 356, 246 S.W.2d 41 (1951); Long v. Tomlin, 22 Tenn.App. 607, 619, 125 S.W.2d 171 (1938); Woody v. Ball, 5 Tenn.App. 300, 304 (1927).

However, when the witness offering the evidence in rebuttal of the presumption is contradicted as to material matters, his credibility is a matter for the jury, which determines whether his evidence overcame the presumption. Jones v. Agnew, 197 Tenn. 499, 502, 274 S.W.2d 825 (1954); Smith v. Phillips, 43 Tenn.App 364, 309 S.W.2d 382 (1956); McConnell v. Jones, 33 Tenn.App. 14, 228 S.W.2d 117 (1949); McParland v. Pruitt, 39 Tenn.App. 399, 284 S.W.2d 299 (1955); Sadler v. Draper, supra; McAmis v. Carlisle, 42 Tenn.App. 195, 300 S.W.2d 59 (1956); Green v. Powell, 22 Tenn.App. 481, 124 S.W.2d 269 (1938); Wright v. Bridges, 16 Tenn.App. 576, 65 S.W.2d 265 (1933); Williams v. Bass, 8 Tenn.App. 482 (1928).

This means that, before a trial judge may take the question from the jury, the evidence must be such that it can be said, as a matter of law, that there was no agency.

In Phillips-Buttorff Mfg. Co. v. McAlexander, 15 Tenn.App. 618 (1932), the Court said:

The testimony of Mr. Binns [agent for employer] and defendant McQueen [employee], with reference to the agreement under which the Ford coupe was purchased and the manner of its use after its purchase, is undisputed, and there was no attempt to impeach the general character of either of said witnesses in any respect. McQueen was contradicted by some of plaintiff's witnesses with respect to certain other material facts; and if the contention of defendant Phillips-Buttorff Mfg. Co. that McQueen was not engaged in its business at the time of the accident, had depended solely on McQueen's testimony, his credibility would have been a matter for the jury to determine. Welch v. Young, 11 Tenn.App. 431, 441.

But the testimony of D. W. Binns is not contradicted in any particular, and he fully corroborates the testimony of McQueen touching the agreement under which the Ford coupe was bought and kept, and the manner of its use. Testimony may not be disregarded arbitrarily or capriciously; and the testimony of a witness who is not discredited in any of the modes recognized by law, must be accepted as true. Frank v. Wright, supra [140 Tenn. 535], p. 543, ; Welch v. Young, supra, [11 Tenn.App. 431], p. 440. 15 Tenn.App. at 626-627.

The motion of defendant Phillips-Buttorff Mfg. Co. for a directed verdict in its favor should have been sustained * * *. 15 Tenn.App. at 628.

Once the witness is impeached on any material point, then the trial court may not hold as a matter of law that the statutory presumption has disappeared and direct a verdict. The Court, in Welch v. Young, 11 Tenn.App. 431 (1930), explained:

* * * ordinarily the testimony of a witness who is not contradicted, impeached, or discredited must be accepted as true, but that if the witness relied upon the establish a given fact be impeached [by evidence directed against his general character for veracity] or discredited in any of the modes recognized by law, that fact may not be treated as established as a matter of law or for purposes of a motion for peremptory instructions. 11 Tenn.App. at 440.

If, in this process of sifting the testimony and the witnesses, the jury found that Brawner had testified falsely about material facts as to which he was contradicted by other witnesses, it was within the province of the jury to reject testimony of Brawner which was not directly contradicted by the testimony of other witnesses. This is merely an application of the ancient maxim, falsus in uno falsus in omnibus. 11 Tenn.App. at 441.

Judge Anderson, after holding in Southern Motors, Inc. v. Morton, 25 Tenn.App. 204, 154 S.W.2d 801 (1941), that the statutory presumption had disappeared, explained the effect of the presumption:

Now, we do not intend to imply that even where a witness giving testimony opposed to the statutory presumption is impeached or otherwise subjected to a discrediting attack, this presumption remains in the case in the sense that it is to be weighed by the jury along with the evidence in determining wherein lies the preponderance with respect to the issue involved; for we do not believe that to be true. Upon the other hand, the fact that the rebutting evidence comes from...