Smith v. Phillips

• Decision Date: 20 December 1956
• Parties: Dr. Charles E. SMITH, Plaintiff-in-Error, v. Ray PHILLIPS, Individually and for Use and Benefit of Motors Insurance Corp., Defendant-In-Error.
• Court: Tennessee Court of Appeals

Page 382

309 S.W.2d 382

43 Tenn.App. 364

Dr. Charles E. SMITH, Plaintiff-in-Error, v. Ray PHILLIPS, Individually and for Use and Benefit of Motors Insurance Corp., Defendant-In-Error.

Court of Appeals of Tennessee, Western Section, at Jackson.

Dec. 20, 1956 Certiorari Denied by Supreme Court April 1, 1957.

Don G. Owens, Memphis, for plaintiff in error.

Ray Churchill, Memphis, for defendant in error.

CARNEY, Judge.

The defendant below, Dr. Charles E. Smith, appeals in error from a judgment of $3,750 rendered against him in favor of the plaintiff below, Ray Phillips individually and for the use and benefit of Motors Insurance Corporation. The lawsuit arose out of a collision between the tractor-trailer truck loaded with lumber owned by the plaintiff, Ray Phillips, and a pick-up truck owned by and registered in the name of Dr. Charles E. Smith.

The accident occurred about 7:30 p. m. on September 11, 1950, on Poplar Pike or Highway No. 72 near Germantown, Tennessee. At the time of the accident the pick-up truck was occupied by Robert Lee Blocker and Clarence Lee McKinney, two colored employees of the defendant, Dr. Charles E. Smith, but the testimony is conflicting and uncertain as to which of these two was driving the truck at the time of the collision.

The plaintiff below proved that the pick-up truck was registered in the name of the defendant, Dr. Charles E. Smith, and relied upon the statutory presumption of ownership and agency as provided in 1932 Code Section 2702 (T.C.A. § 59-1038). Said Code Section is as follows:

'59-1038. Registration prima facie evidence of ownership and that operation was for owner's benefit.[43 Tenn.App. 366] --Proof of the registration of said motor propelled vehicle in the name of any person, shall be prima facie evidence of ownership of said motor propelled vehicle by the person in whose name said vehicle is registered; and such proof of registration shall likewise be prima facie evidence that said vehicle was then and there being operated by the owner or by the owner's servant for the owner's use and benefit and within the course and scope of his employment. (Acts 1921, ch. 162, § 2; 1923, ch. 59; Shan.Supp. § 3079a198b2; mod. Code 1932, § 2702.)'

The defendant, Dr. Charles E. Smith, testified that at the time of the collision the said truck was being used by his two employees without his knowledge or consent and in violation of his express instructions and that they were using said truck for a mission or purpose of thier own and not on any business for Dr. Smith: In substance, that the truck was stolen.

One of the Negroes, Robert Lee Blocker, testified as a witness for the defendant, Dr. Charles E. Smith.

Robert Lee Blocker testified as a witness for Dr. Smith that on the day in question he and Clarence McKinney left Arkansas in the pick-up truck and drove toward the Smith home on Poplar Pike; that they stopped on the way and got some beer and that he, Blocker, let McKinney drive the pick-up truck because McKinney knew the way better than he did. He further testified that after they drove the truck and left it in the yard at Dr. Smith's home he and McKinney went back and got the truck and McKinney drove it to a place where they procured more beer and were going to the home where Blocker's girl friend lived or worked; that they reconsidered before reaching his girl friend's and had turned around and started back west on Poplar Pike when the collision occurred; that McKinney was driving and that they both ran away from the scene of the collision before the officers came.

The plaintiff introduced testimony by both Dr. Smith and Robert Lee Blocker given at a former trial involving this same collision to impeach both witnesses in their testimony concerning the details of the collision. In addition, it was insisted by the plaintiff that the testimony of the defendant, Dr. Charles E. Smith, was impeached by his own testimony, the testimony of his wife and the testimony of the Negro employee, Robert Lee Blocker.

The Trial Judge charged the jury on the question of impeachment of Dr. Smith and his witnesses as follows:

'With reference to the issue of agency, that is, with reference to the issue of whether or not the driver of the pick-up truck was the employee of the defendant, acting in the course or scope of his employment, you heard read to you a statute of the State of Tennessee, which I will re-read. The statute says:

"Proof of the registration of said motor propelled vehicle in the name of any person, shall be prima-facie evidence of ownership of said motor propelled vehicle by the person in whose name said vehicle is registered; and such proof of registration shall likewise be prima-facie evidence that said vehicle was then and there being operated by the owner or by the owner's servant for the owner's use and benefit and within the course and scope of his employment.'

'Now, that statute is prima-facie evidence; it is not substantive evidence of the operation of the vehicle about the business of the master at the time of the happening of the accident, if there is testimony from witnesses before the jury as to what the actual use of the vehicle was at the time of the accident. If the jury finds that all of the witnesses who have testified as to the actual use of the vehicle at the time of the accident, if all of those witnesses are contradicted about material matters, and further if the jury goes further and that because of that, disbelieves all of the testimony of the witnesses as given from the witness stand about what the actual use of the vehicle was at the time of the happening of the accident, and give no weight, credit or value to that testimony as to what the actual use was, then that statute would still under our common law make out a prima-facie case of use about the owner's business by his employee within the course and scope of his employment.'

The jury found the issues in favor of the plaintiff below and the Trial Judge rendered judgment on the verdict.

Plaintiff-in-error, Dr. Charles E. Smith, has made the above quoted portion of the charge of the Trial Judge the basis of his assignment of error No. 5.

Assignments of error 1, 2, and 3 all raise the one question as to whether or not the defendant, Dr. Charles E. Smith, introduced credible evidence sufficient to destroy the presumption of agency set out in Code Section 2702 (T.C.A. § 59-1038) quoted above. It was his insistence below and it is his insistence on this appeal that he was entitled to a directed verdict because the plaintiff introduced no direct evidence to contradict Dr. Smith's testimony that at the time of the collision the Negroes were using the truck in violation of his instructions and for a mission of their own and not in the business of Dr. Smith.

Assignment of error No. 4 is predicated on the exclusion by the Trial Judge of proof by Dr. Smith that some six or eight months after the collision one of the Negroes, Clarence McKinney, was arrested, indicted and convicted in the criminal court of Shelby County for the unlawful use of the pick-up truck without Dr. Smith's consent.

In our opinion the testimony of Dr. Smith was impeached with reference to a number of material facts: A State Highway Patrolman, Mr. Rogers, testified that in the course of his investigation of the wreck that night he traced the license plates on the truck and found that Dr. Charles E. Smith was listed as the owner; that he went immediately to Dr. Smith's home and told him his pick-up truck had been involved in a wreck on Poplar Pike and that Dr. Smith told him his pick-up truck was in Arkansas at that time.

Further the Highway Patrolman testified that the next morning Dr. Smith was down to the office of the Highway Patrol and tried to get the...