Paul v. Milburn

• Decision Date: 27 October 1967
• Docket Number: Civ. A. No. C-67-34.
• Citation: 275 F. Supp. 105
• Parties: Peter PAUL, as Father and Next of Kin of Arthur Stuart Paul, Deceased, and Lillian Florence Paul, as Mother and Next of Kin of Arthur Stuart Paul, Deceased, and as Administratrix of the Estate of Arthur Stuart Paul, Deceased, Plaintiffs, v. James M. MILBURN, Individually, and as Administrator of the Estate of Betty Sue Morris, Deceased, Defendant.
• Court: U.S. District Court — Western District of Tennessee

275 F. Supp. 105

Peter PAUL, as Father and Next of Kin of Arthur Stuart Paul, Deceased, and Lillian Florence Paul, as Mother and Next of Kin of Arthur Stuart Paul, Deceased, and as Administratrix of the Estate of Arthur Stuart Paul, Deceased, Plaintiffs, v. James M. MILBURN, Individually, and as Administrator of the Estate of Betty Sue Morris, Deceased, Defendant.

Civ. A. No. C-67-34.

United States District Court W. D. Tennessee, W. D.

October 27, 1967.

James W. McDonnell, Jr., Robert M. Johnson, Canada, Russell & Turner, Memphis, Tenn., for plaintiffs.

James D. Causey, Memphis, Tenn., for defendant.

OPINION AND ORDER GRANTING MOTION OF DEFENDANT MILBURN TO STRIKE CLAIM FOR PUNITIVE DAMAGES

BAILEY BROWN, Chief Judge.

This is a diversity action to which Tennessee law applies.

This action grows out of an accident involving an automobile driven by Arthur Stuart Paul and an automobile driven by Betty Sue Morris. Both drivers were killed in the accident. The next-of-kin of Paul filed this wrongful death action against the Estate of Betty Sue Morris and James N. Milburn, the owner of the automobile driven by her. The only theory of liability asserted against Milburn, it is conceded by plaintiffs, is vicarious liability. Plaintiffs sue the Estate and Milburn for both compensatory and punitive damages.

We have heretofore denied a motion of Milburn for summary judgment in which he contended that there could be no vicarious liability. We have heretofore granted a motion to strike the claim for punitive damages against the Estate; plaintiffs conceded that this motion was good since an estate cannot be liable in tort for punitive damages. Hayes v. Gill, 216 Tenn. 39, 390 S.W.2d 213 (1965). We now have before us a motion of Milburn to strike the punitive damage claim against him on the asserted ground that, as a matter of law, there can be no vicarious liability for punitive damages or in any event that there can be no vicarious liability for punitive damages in the circumstances present here.

The first question, of course, is whether one who has only vicarious tort responsibility can ever be liable for punitive damages. It appears that in a majority of jurisdictions it is held that he can be. Prosser on Torts (3rd) § 2, p. 12. The Restatements provide otherwise with one small exception not applicable here. Restatement, Agency (2d), Sec. 217 C; Restatement, Torts, § 909. The law of Tennessee is not clear as to when there may be vicarious liability for punitive damages. In 27 Tenn.L.Rev. 381, in an article styled "Punitive Damages in Tennessee," the author concludes (p. 384) that the true rule is that punitive damages may not be had against one only vicariously liable except in three categorized situations: (1) where the master is under a contract-imposed duty or law-imposed duty (i. e. non-delegable duty) that the one to whom the duty is owed not be harmed, such as in a common carried-passenger relation (which, we submit, is not an instance of vicarious liability); (2) where the nature of the employment is such that the master must contemplate the use of force, as where watchmen are charged with keeping trespassers off of the master's premises; (3) where the master entrusts the servant with a dangerous instrumentality, such as a pistol. The author further concludes that the dicta in State ex rel Coffelt v. Hartford, etc., Co., 44 Tenn. App. 405, 314 S.W.2d 161 (1958), indicating that masters are generally liable for punitive damages if the servant is liable, is not supported by the Tennessee cases. There seems to be some confusion in the cases of two separate questions: (1) whether a master can be vicariously liable at all for intentional wrongs by a servant and (2) whether (which is our question) a master can be vicariously liable for punitive damages. Compare: Earley v. Roadway Express, Inc., 106 F.Supp. 958 (E.D.Tenn.1952) and Hyde v. Baggett Transp. Co., 236 F.Supp. 194 (E.D.Tenn.1964) and Coffelt, supra. Since the asserted liability of defendant Milburn is only vicarious liability and since the factual context here does not fit into any of the categories above outlined, we think it is highly doubtful, for this reason alone, that Milburn could be liable for punitive damages. However, we do not have to decide this question since we determine, for a separate reason, that Milburn cannot be vicariously liable for punitive damages.

As heretofore stated, the Estate of Morris cannot be liable for punitive damages, and we have heretofore granted the motion to strike such claim against the Estate. We conclude, by analogy with the holdings in the following cases, that since the Estate cannot be liable for punitive damages, Milburn cannot be vicariously liable for such damages.

In Raines v. Mercer, 165 Tenn. 415, 55 S.W.2d 263 (1932), Pauline Mercer was injured while a guest in an automobile driven by Bill Raines, which belonged to his father, J. W. Raines. Pauline sued the father for personal injuries, asserting that he was vicariously liable for the negligence of his son. Thereafter Pauline married Bill and the defense was made by the...