Pratt v. Duck

• Citation: 191 S.W.2d 562
• Parties: PRATT et al. v. DUCK.
• Decision Date: 11 May 1945
• Court: Supreme Court of Tennessee

191 S.W.2d 562

PRATT et al. v. DUCK.

Court of Appeals of Tennessee. Western Section.

May 11, 1945.

Petition for Certiorari Denied by Supreme Court December 1, 1945.

Appeal in Error from Circuit Court, Madison County; Lamar Spragins, Judge.

Action by Mrs. Rosie Duck, administratrix, etc., against J. S. Pratt and another to recover damages for the wrongful death of the original plaintiff's intestate when a truck struck her as she walked along the highway. Judgment for plaintiff, and defendants appeal in the error.

Affirmed.

John F. Hall, Roger Murray, and J. L. Harrington, all of Jackson, and E. C. Kennedy, of Decaturville, for plaintiffs in error.

L. L. Fonville and H. H. Waldrop, both of Jackson, and Max Bresler, of Memphis, for defendant in error.

ANDERSON, Presiding Judge.

This was an action at law to recover damages for the wrongful death of the original plaintiff's intestate, a girl thirteen years of age, who was killed when a truck struck her as she walked along the highway. The vehicle was being driven at the time by J. S. Pratt, who was alleged to be the servant of Mrs. J. S. Pratt. Both were sued, the declaration averring both compensatory and punitive damages. The verdict was in favor of the plaintiff against both defendants jointly for $5000 compensatory damages, and against the defendant J. S. Pratt for an additional $5000 as punitive damages. On this verdict the judgment was entered and both defendants appealed in error.

The accident happened about 2:30 o'clock in the afternoon of November 30, 1943. The plaintiff's intestate and two companions about her own age were walking eastwardly on the South side of a hard surfaced public highway. The three children were walking abreast, the deceased being on the North. The child in the middle had her arms about the waists of the other two. The three were well to the right side of the road and as they proceeded down the highway the truck was approaching from their rear going East. One of the girls, hearing the truck approaching, looked back and saw that it was zigzagging and all three accordingly moved to the right, getting off of the hard surface and on to the shoulder. Apparently due to the zigzagging motion of the truck, the cab missed the children but the flat body struck the deceased in the back, hurled her through the air into a concrete ditch on the South side of the highway, causing injuries which resulted in her death.

Following the accident, the defendant Pratt did not stop the truck but proceeded through the town of Bemis which was in the immediate vicinity, crossing Highway 45 into which he ordinarily would have turned en route to his home, and proceeded on a gravel road a distance of some seven or eight miles. Upon resuming his journey after he had stopped at a country store for some purpose, he missed entirely a 12-foot bridge and drove the truck headlong into a ditch which it covered.

It is needless to further recount Pratt's activities other than to say that he did not get home at all that night and on the following day he was arrested and later convicted on a charge of manslaughter and sentenced to serve a term of five years in the State penitentiary. At the time of the trial of the present case he had begun serving that term.

There are formal assignments of error resting upon the contention that there is no evidence to support the verdict as to the defendant J. S. Pratt. These assignments are manifestly mere formalities. The evidence was overwhelming to the effect that at the time of, and just prior to, the accident, Pratt was grossly drunk and was operating the truck with a reckless disregard of the rights of others on the highway. Indeed, due to his condition and the manner in which he was operating the powerful machine, he was a menace to everything in the vicinity.

It would be difficult to make a case which clamored more insistently for both compensatory and punitive damages than that presented to the jury. See Saunders v. Baxter, 53 Tenn. 369, 384; Railroad v. Ray, 101 Tenn. 1, 46 S.W. 554; Tel. & Tel. Co. v. Shaw, 102 Tenn. 313, 52 S.W. 163; Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557, 46 L.R.A. 549.

There is some contention that when both the allowances for compensatory and for punitive damages are considered, the verdict is excessive. There is no merit in this contention. Upon the contrary, we think the jury was very lenient with the defendant due likely to the fact that he had been sentenced on the criminal charge.

But it is contended in effect that this sentence operated to bar the allowance of punitive damages. As to this question the decisions are not in accord. The weight of authority, however, is to the effect that the mere fact that the defendant has been punished criminally for the wrongful act upon which the civil action is based does not exempt him from liability for punitive damages. 15 Am.Jur. 711, Sec. 272; Notes 9 Ann.Cas. 639; 11 Ann.Cas. 1177; Ann.Cas.1915B, 129; 28 Am.St.Rep. 882; 16 A.L.R. 798; 123 A.L. R. 1122. The cases so holding proceed upon the theory that whether exemplary damages are in their nature compensatory or punitive, they are not imposed as a substitute for punishment for crime but rather as enlarged damages for a civil wrong. Basically the criminal proceeding is to punish the defendant for a past offense, whereas in cases of fraud, malice, gross negligence or oppression, the interest of society and of the aggrieved individual are blended and exemplary damages are allowed as an example or warning to the defendant and others as well to deter them from committing like offenses in the future. Louisville, Nashville & Great Southern Railroad Co. v. Guinan, 79 Tenn. 98; 15 Am.Jur. 700, 703.

We think the majority rule the sounder and accordingly adopt it.

In this connection one other question may be noticed. It is well settled that under a statute authorizing a right of action by the personal representative of a deceased person for the wrongful death of the latter, exemplary damages may not be recovered unless the statute expressly or by necessary implication so authorizes. The question therefore is one of statutory construction and it may be observed that the statutes of many States are construed to prevent the allowance in such cases of damages of that kind. 16 Am. Jur. 124, 125, 126. Our own statute on the subject is found in Code, Section 8236, providing in substance that the right of action which the deceased person would have had against the wrongdoer in case death had not resulted shall not abate or be extinguished by his death but shall pass to his widow, and in case there is no widow, to his children, or to his next of kin; or to his personal representative for the benefit of his widow or his next of kin. The language necessarily implies that exemplary damages may be recovered upon a proper state of facts; otherwise the right of action would not be the same as the deceased person would have had against the wrongdoer had his death not ensued from the wrongful act, and it has been generally so regarded by the courts of this State. Union R. Co. v. Carter, 129 Tenn. 459, 166 S.W. 592; Haley v. Mobile & O. R. Co., 66 Tenn. 239; R. R. v. Daughtry, 88 Tenn. 721.

The theory of our decisions is that the statute providing the right of action is no less a survival statute than one for the protection of the designated beneficiaries. Carolina C. & O. R. R. v. Shewalter, 128 Tenn. 363, 161 S.W. 1136, L.R.A.1916C, 964, Ann.Cas.1915C, 605; Union R. Co. v. Carter, supra.

The case against the defendant Mrs. Pratt was grounded solely upon the doctrine of respondeat superior, and it is contended that there was no evidence to warrant the conclusion that her husband was her servant acting within the scope of his employment with respect to the particular transaction.

Plaintiff showed that the truck which the defendant Pratt was driving at the time of the accident was registered in the name of Mrs. Pratt, and relied upon the statutory presumption thus raised as showing prima facie that the truck was being used on the business of Mrs. Pratt. This presumption operated to cast the burden upon the defendants of going forward with the evidence upon the issue, but it disappeared from the case upon the introduction of evidence showing the purpose for which the vehicle was being used, and is not available to support the verdict. Southern Motors Co. v. Morton, 25 Tenn. App. 204, 154 S.W.2d 801.

However, upon the evidence offered by the defendants no conclusion other than that reached by the jury was possible.

Pratt and his wife lived in Decatur County, in the town of Scotts Hill. Mrs. Pratt owned a cotton gin which was operated for her by her husband. On the morning of the accident Pratt left Scotts Hill in the truck loaded with seven bales of cotton which he intended to deliver to a compress. Five of the bales belonged to the Pratt Gin Company, the name under which Mrs. Pratt operated, and two of them to one of the Gin Company's customers. The seven bales of cotton were duly delivered to the Federal Compress in Jackson, Madison County, Tennessee, and receipts taken for five bales in the name of the Pratt Gin Company, and for two bales in the name of the customer, Robert Austin. Pratt ran over and killed the child in Madison County, Tennessee, near the village of Bemis after he had delivered the cotton and while he was en route to his home.

The evidence touching the duties of Pratt in connection with the operation of the gin...