Tennessee Valley Appliances v. Rowden
| Decision Date | 17 August 1940 |
| Citation | 146 S.W.2d 845 |
| Parties | TENNESSEE VALLEY APPLIANCES, Inc., v. ROWDEN. |
| Court | Tennessee Supreme Court |
Walter Stokes and Roberts & Roberts, all of Nashville, for plaintiff in error Tennessee Valley Appliances, Inc.
Alfred T. Adams and R. Boyte Howell, Jr., both of Nashville, for defendant in error Oscar Rowden.
This was an action by the plaintiff Rowden against J. A. Cleaver and Tennessee Valley Appliances, Inc., to recover damages for personal injuries suffered by him when he was run down on a highway by an automobile owned and driven by Cleaver, averred to have been an employee of the Tennessee Valley Appliances, Inc.
The defendants pleaded the general issue of not guilty.
The case was tried by the judge and a jury. At the close of the evidence for the plaintiff and again at the conclusion of all the evidence each defendant moved the court for peremptory instructions in his favor, which motions were overruled. The jury returned a verdict for $1,200 in favor of the plaintiff and against the defendants. On the hearing of the defendants' motion for a new trial the court suggested a remittitur of $200, but overruled the motion on all other grounds. The plaintiff accepted the remittitur and judgment was entered in his favor for $1,000.
The defendant Tennessee Valley Appliances, Inc., appealed in error to this Court. Cleaver did not appeal.
The errors assigned are as follows:
(1) There is no evidence to support the verdict, and the court erred in not directing a verdict for the defendants, as (a) the defendant Cleaver was not guilty of any negligence; (b) the plaintiff was guilty of contributory negligence in stepping in front of the automobile; (c) the defendant Cleaver was an independent contractor.
(2) The verdict was so excessive as to indicate passion, prejudice, and caprice on the part of the jury.
The facts of the case as disclosed by the record are as follows:
The accident occurred at about 7:15 in the morning, on February 4, 1939, on the Ben Allen Road, which intersects the Gallatin Road at a point about five miles from Nashville.
The Ben Allen Road is an oiled road about fifty-four feet wide from gutter to gutter. The paved oiled portion is twenty to twenty-five feet wide, and the shoulders about sixteen feet wide.
Oscar Rowden was walking east on the south side of the road, on the shoulder, about three or four feet from the gutter. Cleaver was driving his automobile in the same direction, behind Rowden. Rowden was struck by the automobile and knocked down.
1. The evidence for the plaintiff was that Rowden was walking on the shoulder of the road; that the windshield of Cleaver's automobile was covered with frost and ice; that Rowden was struck by the automobile, knocked unconscious, and sustained concussion of the brain and a sprained back and shoulder.
The evidence for the defendants was that there was no frost on the windshield of the automobile; that Cleaver was driving at a speed of fifteen to twenty miles an hour; that Rowden suddenly turned to his left as if to cross the road, and struck the automobile on the side of the fender, and was thrown to the ground; that he was not rendered unconscious; that he told Cleaver, as he helped him up, that he had started to cross the road.
The foregoing evidence made an issue for the jury. There is evidence of defendant Cleaver's negligence, sufficient to support the verdict of the jury, therefore the trial judge was correct in overruling the defendants' motion for peremptory instructions, and this court will not disturb the verdict on this account.
2. The question of the plaintiff's contributory negligence was properly submitted to the jury. The jury by its verdict accepted the plaintiff's contention that he was on the shoulder of the road and had a right to presume that defendant Cleaver would drive on the oiled pavement.
3. We think there is nothing in the defendants' contention that Cleaver was an independent contractor.
Cleaver testified that he was employed by the Tennessee Valley Appliances, Inc., as salesman and collector; that he received a salary of $30 a week and 10% commission on sales; that he used his own automobile on the business of the Company, and the Company paid him $8 a week for its use, which was included in his salary; that at the time the accident happened he was on his way to collect some amount due the Company.
A. H. Harned, secretary and treasurer of the Tennessee Valley Appliances, Inc., testified that Cleaver was a general collector for the Company and used his own discretion as to when and where to go to collect.
It appears from the evidence that the Company prepared a list of accounts against people in Nashville, on...
To continue reading
Request your trial
-
Common Council of City of Peru v. Peru Daily Tribune, Inc.
...is synonymous with 'employee'. Gibson v. Gillette Motor Transport, Tex.Civ.App., 138 S.W.2d 293, 294; Tennessee Valley Appliances v. Rowden, 24 Tenn.App. 487, 146 S.W.2d 845, 858. However, 'employee' must be distinguished from 'independent contractor,' 'officer,' 'vice-principal,' 'agent,' ......
-
General Shale Products Corp. v. Reese for Use and Ben. of U.S. Fidelity & Guar. Co.
...we think the question of whether Litton was, or was not, an independent contractor was for the jury. Tennessee Valley Appliances, Inc., v. Rowden, 24 Tenn.App. 487, 146 S.W.2d 845; Odom v. Sanford & Treadway, supra; Gulf Refining Co. v. Huffman & Weakley, 155 Tenn. 580, 297 S.W. 199; Knight......
-
Ely v. Rice Bros.
...17 Am.St.Rep. 925; Marshall v. South Pittsburg Lumber and Coal Co., 164 Tenn. 267, 47 S.W.2d 533, 544; Tennessee Valley Appliances, Inc., v. Rowden, 24 Tenn.App. 487, 146 S.W.2d 845. An employer seeking to be relieved from liability for injuries for the act of another done in behalf of the ......
-
Hendrix v. City of Maryville
...the existence of an independent contractor in an effort to avoid liability must carry the burden of proof. Tennessee Valley Appliance v. Rowden, 24 Tenn.App. 487, 146 S.W.2d 845. In determining whether one is an independent contractor, the language of the contract is always considered but d......