Tucker v. Home Stores

• Decision Date: 10 March 1936
• Parties: TUCKER v. HOME STORES, Inc. (two cases).
• Court: Tennessee Supreme Court

Page 296

91 S.W.2d 296

TUCKER v. HOME STORES, Inc. (two cases).

Supreme Court of Tennessee.

March 10, 1936.

Error to Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Actions by J. L. Tucker and Sam Tucker against the Home Stores, Incorporated. To review a judgment for defendant which was affirmed by the Court of Appeals, plaintiffs bring certiorari.

Affirmed.

Whitaker & Whitaker, of Chattanooga, for plaintiffs J. L. Tucker and Sam Tucker.

Sizer, Chambliss & KeFauver, of Chattanooga, for defendant Home Stores, Inc.

DE HAVEN, Justice.

Plaintiffs in error, J. L. and Sam Tucker, sued L. W. Wright and Home Stores, Inc., for damages on account of personal injuries sustained by them when an automobile owned and operated by Wright was caused to collide with a wagon on which they were riding. On the trial of the cases, at the conclusion of plaintiff's proof, a motion was made and granted for a directed verdict in favor of the Home Stores, Inc., and the suits were dismissed as to it. A verdict was returned against Wright in favor of Sam Tucker for $1,000 and in favor of J. L. Tucker for $250. Wright did not appeal from these judgments, but plaintiffs appealed to the Court of Appeals from the action of the trial judge in directing a verdict in favor of the Home Stores, Inc. The Court of Appeals affirmed the judgment of the trial court, and plaintiffs filed their petition for certiorari and assigned errors. Certiorari was granted, and argument has been heard by this court.

The only question involved on this appeal is whether or not the Home Stores, Inc., is responsible for Wright's negligence in causing the accident complained of.

Home Stores, Inc., owns and operates a number of "cash and carry" grocery stores in the city of Chattanooga and its suburbs. Wright was manager of the store at Thirty-Sixth street and Rossville boulevard. He was the only employe in the store, except that on Friday afternoons and Saturdays, on account of the rush of business, he was furnished an assistant. The bulk of the trade of this store came from people working for the various industries located in the vicinity, and they would use their pay checks in trading for groceries. It was one of the duties of Wright, as manager of the store, to keep sufficient change on hand, this being necessary to the proper conduct of the business. He had no instructions, however, to go to the bank at Rossville, or to any bank, and cash checks taken in trade. The store was equipped with a telephone, and the company maintained a number of service trucks that operated from their main office to supply its various stores with anything they needed. Wright knew this fact.

On Friday afternoon, June 30, 1933, and on Saturday morning, July 1, Wright took in a great many pay checks, and the change ran short. The bank at Rossville was about one and a half miles distant from this store. The means of public transportation from the store to the bank was a street car line, about one block from the store, and taxi lines with no regular schedules. Wright had his privately owned automobile out in front of the store, and he took the pay checks on hand to go and get them cashed at the bank at Rossville, in order to obtain the necessary change for the proper operation of the business of the store. According to the testimony of Wright, the trip to Rossville was of a dual nature, or, as he says, "it was kind of a mix...