Kennedy v. Union Charcoal & Chemical Co.

• Decision Date: 02 April 1928
• Citation: 4 S.W.2d 354,156 Tenn. 666
• Parties: KENNEDY v. UNION CHARCOAL & CHEMICAL CO.
• Court: Tennessee Supreme Court

4 S.W.2d 354

156 Tenn. 666

KENNEDY v. UNION CHARCOAL & CHEMICAL CO.

Supreme Court of Tennessee.

April 2, 1928

Certiorari to Court of Appeals, on appeal from Circuit Court, Shelby County; B. L. Capell, Judge.

Action by E. J. Kennedy against the Union Charcoal & Chemical Company. Judgment for defendant was reversed and remanded by the Court of Appeals, and defendant's petition for certiorari was granted. Judgment of Court of Appeals reversed, and that of trial court affirmed.

J. S Edmondson and Lee Winchester, both of Memphis, for plaintiff.

Knipmeyer & Dixon, of Memphis, for defendant.

McKINNEY J.

This suit was instituted by the plaintiff, E. J. Kennedy, against the defendant, Union Charcoal & Chemical Company, to recover damages for an injury resulting from a collision between a motorcycle, on which plaintiff was riding, and an automobile which Alt, an employee of defendant, was driving.

The trial court sustained the defendant's motion for a directed verdict. Upon appeal the Court of Appeals reversed the trial court and remanded the case for a new trial. A petition for certiorari, filed by the defendant, has heretofore been granted, and the case has been ably argued at the bar of this court.

The defendant is a New York corporation operating a small branch plant near the city of Memphis. It is engaged in grinding sacking and selling charcoal.

Alt was in charge of the Memphis plant, the other force consisting of four negroes. Alt was more of a servant than an agent. His principal duty was to see that the four negroes were kept at work.

Some officer of the company visited the Memphis plant every few weeks, made all of the purchases, sold the output of the plant, with the exception that if a customer came to the plant to purchase a sack of ground charcoal Alt was authorized to sell it to him for cash.

The difference between an agent and a servant is fully discussed in 2 Corpus Juris, 423. In a note at the bottom of the page it is said:

"Agency properly speaking, relates to commercial or business transactions, while service has reference to actions upon or concerning things. Service deals with matters of manual or mechanical execution. An agent is the more direct representative of the master, and clothed with higher powers and broader discretion than a servant. Mechem, Agency, 1, 2. The terms 'agent' and "servant' are so frequently used interchangeably in the adjudications that the reader is apt to conclude they mean the same thing. We think, however, that the history of the law bearing on this subject shows that there is a difference between them. Agency, in its legal sense, always imports commercial dealings between two parties by and through the medium of another. An agent negotiates or treats with third parties in commercial matters for another.

Kingan & Co. v. Silvers, 13 Ind.App. 80, 37 N.E. 413, 416."

Most of the charcoal which defendant ground came from the plant of the Forest Products Chemical Company, located a quarter of a mile from the plant of the defendant. It required five minutes to walk and one minute to ride in an automobile from one plant to the other, and they had telephone connections.

The facts which we wish to emphasize are that the defendant neither owned, used, nor had any need for an automobile in connection with its Memphis plant. It did not authorize Alt to use his individual car in connection with his duties at said plant, and had no actual knowledge that he was so using it. His duties, according to the president of the company, were confined to the plant.

On the morning of the accident Alt drove in his car from the plant of defendant to that of the Forest Products Chemical Company for the purpose of requesting it not to send any more wet charcoal. It was on the return trip that he collided with the motorcycle of plaintiff.

Assuming that Alt was at fault, the question is was he such an employee as to enable the plaintiff to invoke the doctrine of respondeat superior?

We will now state some of the principles of law governing cases of this character.

In 18 R. C. L., under the title of Master and Servant, it is said:

Section 247: "'The doctrine of the liability of the master for the wrongful acts of his servant is predicated upon the maxims "respondeat superior" and ""qui facit per alium facit per se." In fact, it rests upon the doctrine of agency.' By legal intendment the act of the employee becomes the act of the employer, the individuality of the employee being identified with that of the employer. The latter is deemed to be constructively present; the act of the employee is his act; and he becomes accountable as for his own proper act or omission. Ultimately, like every other rule of law, the principle finds its foundation in public policy and convenience. It may be thought to be a hard rule to fix liability on the employer, even when the employee has passed out of sight and control; but it is elemental that every person in the management of his affairs shall so conduct them as not to cause an injury to another. If he does not do so, and another sustains an injury, he must answer in damages. Inasmuch as he has made it possible for his employee to inflict injury, it is but just that he should be held accountable. 'The maxim of respondeat superior,' says Lord Chief Justice Best in Hall v. Smith, 2 Bing. 156, 160, 9 E. C. L. 357, 'is bottomed on this principle: That he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it.'' D'

Section 252. "In considering whether the wrongful act of the employee is in character such as to impose liability on the employer, the test recognized by every system of jurisprudence, apparently, is whether there was authority express or implied for doing the act."

Section 255. "The courts are generally agreed that an employer may be held accountable for the wrongful act of his employee, although he had no knowledge thereof, or disapproved it, or even had expressly forbidden it. And so the employer may be made liable for acts done in violation of his rules, orders, or instructions. If he employs incompetent or untrustworthy agents he must bear the consequences. It has been said: 'If the servant's disobedience of instructions will exonerate the master, the proof, easily made, virtually does away with the maxim of "respondeat superior," designed for the protection of innocent third persons, and obliging the principal to be careful in the employment of agents, to whom he intrusts the means of committing an injury." D'

In Blashfield's Cyclopedia of Automobile Law (1927) vol. 2, p. 1375, the author says:

"So the fact that one employed to solicit orders has not been directed to use an automobile in performing his duties will not relieve his master and the owner of the machine from liability for his negligence in driving the machine while soliciting orders, if his use thereof is known to one of the managers of the business, and its use is for the employer's benefit, in that it enables the employee to see more people and presumably to make more sales; and an insurance agent to whom has been assigned a district comprising an area of over 200 square miles, and who is allowed to use any reasonable means of conveyance in performing his duties, may be found to be acting within the scope of his employment is using an automobile in the course of his duties."

In Labatt, Master and Servant (2d Ed.) p. 6888, it is said:

"If the other circumstances involved in a case are consistent with, or require, the inference that the tort complained of was within the scope of the servant's employment, the mere fact that the instrumentality, which occasioned the plaintiff's injury, did not belong to the master, will not preclude him from recovering damages. The action is deemed to be maintainable or not maintainable according as his use of the instrumentality was or was not expressly or impliedly authorized by the master. Such authorization is manifestly a proper inference, wherever it is provided by the contract of hiring that the servant is to use, for the purposes of the stipulated work, an instrumentality belonging to himself."

Applying these rules to the facts of this case, it appears that Alt was the servant of the defendant and was engaged in his master's business at the time of the accident, but there is no evidence that the use of the automobile was either expressly or impliedly authorized

by the master, and in all of the cases relied upon by plaintiff, with one exception, the courts found facts sufficient to support findings of implied authorization.

In Williams v. National Cash Register Co., 157 Ky. 836, 164 S.W. 112, Alexander was employed by the company to sell cash registers in a large territory. The company had knowledge that he used his automobile in soliciting orders and made no objection thereto, and in that way impliedly authorized its use. The only question involved in that case, however, was whether Alexander was a servant or an independent contractor.

In Dillon v. Prudential Ins. Co., 75 Cal.App. 266, 242 P. 736, it appears that McDonald was employed to cover a large territory in delivering policies, collecting premiums and performing other services, using "any reasonable means of conveyance that would enable him to cover his territory."

In responding to the insistence that McDonald was not impliedly authorized to use his automobile, the court said:

"As to the reasonableness of the means of travel employed by the agent, certainly an automobile was a reasonable means of conveyance in a district as extended as that assigned to

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