Pryor Brown Transfer Co. v. Gibson

• Decision Date: 20 November 1926
• Citation: 290 S.W. 33,154 Tenn. 260
• Parties: PRYOR BROWN TRANSFER CO. ET AL. v. GIBSON (TWO CASES).
• Court: Tennessee Supreme Court

290 S.W. 33

154 Tenn. 260

PRYOR BROWN TRANSFER CO. ET AL. v. GIBSON (TWO CASES).

Supreme Court of Tennessee.

November 20, 1926

Error to Circuit Court, Knox County; A. C. Grimm, Judge.

Actions by Joe M. Gibson, next friend of Mary Galbraith Gibson, and by Joe M. Gibson, individually, against the Pryor Brown Transfer Company and others. From judgments of Court of Appeals dismissing cases after judgments in circuit court for plaintiffs, plaintiffs bring error. Judgments of Court of Appeals reversed, and those of circuit court affirmed.

Johnson & Cox, of Knoxville, for plaintiff in error Pryor Brown Tansfer Co.

Cates Smith, Tate & Long, of Knoxville, for defendant in error.

McKINNEY J.

These suits were brought against Pryor Brown and Charles J. Brown doing business under the name and style of Pryor Brown Transfer Company, for injuries sustained by Mary Galbraith Gibson, a minor, in the one case, and for the consequent expense and loss on the part of her father, Joe M. Gibson, in the other case.

The injury resulted from a collision between a mail truck of the Pryor Brown Transfer Company and a car in which Mary Galbraith Gibson was riding.

The truck of the company was driven at the time by William Jenks. He had been in the employ of the company for some year and a half, and was considered a safe driver. The truck was on a regular mail route at the time of the accident, which occurred on the night of May 19, 1923, in the city of Knoxville.

Mary Galbraith Gibson recovered a judgment for $5,000 but was required to enter a remittitur of $3,500. The recovery in favor of her father was $600.

Upon an appeal the Court of Appeals dismissed both cases upon the idea that the company and its driver Jenks were agents and officers of the government, engaged in carrying the mail, and that the company was exempt from liability for the negligence of its employee Jenks.

The jury, by their verdict, have settled the controverted issues of fact, and we will dispose of the case upon the theory that the plaintiff below was injured as a result of the negligence of Jenks in handling the company's truck.

On June 22, 1920, the company entered into a written contract with the government for transporting the mails on route No. 42702 in the city of Knoxville for the consideration of $17,990 per annum, beginning July 1, 1920, and ending June 31, 1924. The company was to furnish the necessary screen wagons, and transport the mail between the post office and the stations under the direction of the postmaster of Knoxville.

The fourth section of the contract is as follows:

"To be accountable and answerable in damages to the United States or any person aggrieved, for the faithful performance by the said contractor of all duties and obligations herein assumed, or which are now or may hereafter be imposed upon him by law in this behalf; and, further, to be so answerable and accountable in damages for the careful and faithful conduct of the person or persons who may be employed by said contractor and to whom the said contractor shall commit the care or transportation of the mails, and for the faithful performance of the duties which are or may be by law imposed upon such person or persons in the care or transportation of said mails; and, further, that said contractor shall not commit the care or transportation of the mail to any person under eighteen years of age, or any person undergoing a sentence of imprisonment at hard labor imposed by a court having competent jurisdiction, or to any person who has not satisfied the postmaster or his representative (subject to the approval of the postmaster general) that he has good moral character and ability to perform the service, has taken the oath prescribed by law, can read and write the English language, and has passed the required examination and furnished satisfactory reference as to his qualifications and fitness."

By the fifth section the company was required "to discharge any driver, or other person employed in performing mail service, whenever required by the postmaster general so to do."

The company was further required to execute a bond for the faithful performance of the contract, and each member of the company was required to subscribe to the following oath:

"I will faithfully perform all the duties required of me and abstain from everything forbidden by the laws in relation to the establishment of post offices and post roads within the United States, and that I will honestly and truly account for and pay over any moneys belonging to the said United States which may come into my possession or control; and I also further swear that I will support the Constitution of the United States."

Every person handling the mail is required to take this oath, and same was subscribed by Jenks.

Upon this state of facts, and under the authorities, it is manifest that the relationship of master and servant existed between Jenks and the company. Every element of that relationship was present. Jenks was hired by the company; his compensation was fixed and paid by it; he was under its control; and could be discharged by it at pleasure.

The fact that the mail was to be transported under the supervision of the postmaster at Knoxville, or that he had a right to discharge Jenks, would not change the relationship. 39 Corpus Juris, p. 5, § 4, notes 26, 27.

This question is fully discussed in the case of Sawyer v. Corse, 17 Grat. (Va.) 230, 94 Am. Dec. 445.

In this situation, the universal rule is invoked by claimants, that, under the doctrine of respondeat superior, a master is liable for injury to person or property resulting from the acts of his servant done within the scope of his employment.

On the other hand, counsel for the company insist that, even though Jenks be treated as its servant, he was engaged in handling mail, and was therefore an agency of the government, as were his employers, and the equally well-recognized rule is invoked which exempts a public officer from liability for the acts and defaults of his official subordinates.

The doctrine is thus stated in 1 Am. Lead. Cas. (3d Ed.) 621:

"With regard to the responsibility of a public officer for the misconduct or negligence of those employed by or under him, the distinction generally turns upon the question whether the persons employed are his servants, employed voluntarily or privately and paid by him, and responsible to him, or whether they are his official subordinates, nominated perhaps by him, but officers of the government; in other words, whether the situation of the inferior is a public officer or private service. In the former case the official superior is not liable for the inferior's acts; in the latter he is."

The foregoing statement is approved by the following authorities: Sherman & Redfield on Negligence, § 180; Sawyer v. Corse, supra; Central R. & Banking Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; Railser v. Oliver, 97 Ala. 710, 12 So. 238, 38 Am. St. Rep. 213; Barker v. Chicago, P. & St. L. R. Co., 243 Ill. 482, 90 N.E. 1057, 26 L. R. A. (N. S.) 1058, 134 Am. St. Rep. 382.

In the last-named case it is said:

"The exemption of public officers from responsibility for the negligence or positive wrongs of their subordinates in the discharge of their public duties arises from considerations of public policy. Competent persons would not be willing to accept positions which imposed upon them liability for torts and wrongs committed by subordinates whom they did not appoint and could not discharge. These considerations do not apply to a corporation undertaking, by contract, to perform work or render service for the government for a compensation to be paid to it and with a view to its own profit, and where its subordinates are employed and paid by it and liable to be dismissed at its pleasure. It is said in Sawyer v. Corse, supra: 'Such a contractor is in no just and proper sense an officer of the government, and though he may be said to be in a certain sense an agent of the government because he is engaged in working for the government, yet the laborers and...