Hoover Motor Express Co. v. Thomas

• Decision Date: 01 April 1933
• Citation: 65 S.W.2d 621
• Parties: HOOVER MOTOR EXPRESS CO., Inc., v. THOMAS.
• Court: Tennessee Supreme Court

Page 621

65 S.W.2d 621

HOOVER MOTOR EXPRESS CO., Inc., v. THOMAS.

Court of Appeals of Tennessee, Middle Section.

April 1, 1933.

Certiorari Denied by Supreme Court December 15, 1933.

Appeal in Error from Circuit Court, Davidson County; A. G. Rutherford, Judge.

Action by George M. Thomas, administrator of the estate of Mary Royer Cobb, deceased, against the Hoover Motor Express Company, Inc., and others. From a judgment for plaintiff, named defendant appeals in error.

Reversed, and suit dismissed.

Richard Gleaves and W. C. Cherry, both of Nashville, for plaintiff in error.

C. G. Blackard, of Nashville, for defendant in error.

FAW, Presiding Judge.

In this court this is a contest between Hoover Motor Express Company, Inc., and George M. Thomas, administrator of the estate of Mary Royer Cobb, deceased.

In the circuit court of Davidson county, the administrator sued Hoover Motor Express Company, Inc., Cordell Goad, and Ben F. Cassidy for $25,000 as damages, "both compensatory and punitive," for the alleged wrongful killing of his intestate, and obtained the verdict of a jury, and judgment of the court thereon, for $19,000 and costs against the three defendants; whereupon the Hoover Motor Express Company alone moved for a new trial, and (when its motion was overruled) appealed in error to this court.

The action was begun in the circuit court on October 27, 1931, and on November 3, 1931, the plaintiff filed a declaration containing five counts, which was, by leave of the court, amended after the verdict and judgment by the addition of a sixth count.

It is averred in the declaration, and appears without dispute, that, during the period of time covered by the transactions involved in this case, the defendant Hoover Motor Express Company, Inc., was a corporation, chartered and organized under and by virtue of the laws of the state of Tennessee, with a principal office and place of business in Nashville, Davidson county, Tenn.; that defendant Cordell Goad was a resident of the city of Nashville, Davidson county, Tenn.; and that defendant Ben F. Cassidy was a citizen of Murfreesboro, Rutherford county, Tenn. However, it appears from the proof that defendant Cassidy had been for a time temporarily residing in the city of Memphis, Tenn.

The undisputed proof also supports the averments of the declaration that on and prior to the 20th and 21st days of June, 1931, the defendant Hoover Motor Express Company, Inc. (hereinafter, for convenience, called the Hoover Company), was a common carrier, and was engaged in operating a motor vehicle line between Nashville, Tenn., and Memphis, Tenn., and intermediate points, transporting freight, merchandise, live stock, etc., for compensation, over the highways and between other points in Tennessee; but the truth of the further averment of the declaration made in the same connection, that the defendant Hoover Company "was engaged, occasionally, in the transporting of passengers," is a matter of controversy on the record. Without referring at this time to the evidence with respect to the alleged practice of defendant Hoover Company to occasionally transport passengers, and/or the legal effect of such practice if proved, we may say here that it (the Hoover Company) was not authorized by its charter or by the Railroad and Public Utilities Commission, and hence was not authorized by law, to carry "passengers" on its motor vehicles.

Plaintiff avers in his declaration:

"That the defendants, Ben F. Cassidy and Cordell Goad, on and prior to June 21, 1931, were the regularly employed agents and drivers of the trucks belonging to the defendant corporation; that on said date hereinafter mentioned the defendants Goad and Cassidy, in the scope of their employment and acting under the direct orders of the officials of the defendant corporation, and in furtherance of their employers' business, made the regular trip from Memphis, Tennessee, to Nashville, Tennessee, leaving Memphis at 5:00 o'clock in the afternoon of June 20, 1931, and reaching Nashville about 10:00 o'clock on the morning of June 21, 1931."

The averments just quoted are true with respect to defendant Goad, but with respect to defendant Cassidy they are unsupported by proof. Defendant Cassidy had formerly been employed by defendant Hoover Company as a truck driver for about three years, but the undisputed evidence shows that, on and some time prior to June 20, 1931, defendant Cassidy was driving a motortruck between Memphis, Tenn., and Atlanta, Ga., as an employee of the West Tennessee Motor Express Company, which maintained a joint terminal depot with the defendant Hoover Company in Memphis, but was otherwise a separate and independent corporation, and defendant Cassidy had no connection with the Hoover Company at the time plaintiff's intestate met her death. In the afternoon of June 20, 1931, Cassidy was "laid off," or suspended, for a week by his employer, the West Tennessee Motor Express Company, and defendant Goad, with the knowledge of James Simmons, the joint terminal agent of the two companies at Memphis, permitted Cassidy to ride on the Hoover Company's truck from Memphis to Nashville, as he (Cassidy) wished to go to Murfreesboro where his father's family lived.

The brief of the learned counsel for the administrator appears to have been framed on the theory that both Goad and Cassidy were employees of the Hoover Company, but it is stated in what seems to be a typewritten interlineation at the foot of page 8 of the brief that: "Mr. Cassidy, who was not connected with the defendant Company, was riding the truck on the day in question with Mr. Simmons' permission."

The several counts of plaintiff's declaration differ in their respective averments touching the manner in which plaintiff's intestate gained access to the truck of defendant Hoover Company at the time here in question; there being averments that defendant Hoover Company gave plaintiff's intestate permission to be transported in one of its trucks from Memphis to Nashville and thus promised that it would safely carry her, etc., and also averments that defendants Goad and Cassidy gave plaintiff's intestate permission to make the trip in said truck and that this was known to the officers of defendant Hoover Company, who made no objection thereto.

Again, it is averred, in the fourth count of the declaration, that the drivers of the trucks of defendant Hoover Company were in the habit of "frequently transporting passengers" back and forth, between Memphis and Nashville, and that this fact was known to the officials of defendant Hoover Company, or could have been known to them "upon reasonable investigation such as is required of a prudent or reasonable official under similar circumstances."

In the fifth count, it is averred that plaintiff's intestate boarded said truck of defendant Hoover Company, and continued thereon as a passenger, with the knowledge, consent, and permission of defendants Goad and Cassidy, who, it is averred, had control of said truck and were driving and operating same on one of their regular runs from Memphis to Nashville within the apparent scope of their employment and in the furtherance of defendant Hoover Company's business.

Paragraph III of the first count of plaintiff's declaration is as follows:

"After traveling on said truck, as aforesaid, from Memphis, Tennessee, towards Nashville, Tennessee, and as the truck, under the control of defendants Goad and Cassidy, neared the Tennessee River and about one-thousand yards west of the Toll House on the Tennessee River Bridge on State Highway No. 1, the said Goad and Cassidy, the agents and employees of the defendant corporation, and the drivers in charge of said truck, stopped said truck, and wilfully, wantonly, wrongfully, illegally, oppressively, recklessly and negligently, and in violation of the rights of plaintiff's intestate, inflicted wounds and bodily injuries upon her, from which she did then and there die, and after inflicting such injuries, as aforesaid, from which plaintiff's intestate did then and there die, the said defendants, Goad and Cassidy, agents and employees of defendant corporation, and in whose care deceased's safe passage from Memphis, Tennessee, to Nashville, Tennessee, was intrusted by the defendant corporation, placed or had placed the mutilated body of deceased in said truck and carried it for forty miles east on said highway, where they then and there pulled and dragged her said body out of said truck and into the bushes in a wooded area, where they threw it and left it to be fed upon by the vultures of the air and the vermin of the fields.

"Said injuries inflicted upon said deceased, from which she died as aforesaid, consisted of crushing in her skull and knocking out her brains with some blunt instrument, breaking her jaw with some blunt instrument and stabbing and cutting her body with some sharp instrument, and otherwise beating and bruising and mutilating her body."

The second, third, fourth, and fifth counts of the declaration expressly, by reference, adopt the above-quoted paragraph III of the first count.

The verdict of the jury was returned and the judgment of the court thereon was pronounced and entered on March 25, 1932, and thereafter, viz., on April 2, 1932, the court permitted the plaintiff to amend the above-quoted paragraph III of the first count of the declaration by inserting after the words "of said truck" in the eleventh line of said paragraph III, the following words:

"And while acting within the scope of their employment and in the furtherance of defendant corporation's business."

And by the same order the plaintiff was permitted to amend the same paragraph of the first count of the declaration by inserting after the word "negligently," in the thirteenth line of paragraph III, the following words: "In an effort to eject plaintiff's intestate from said truck and/or while ejecting her from said truck."

On the same day, viz., ...