99 Tenn. 241 | Tenn. | 1897
Henry Struby, Jr., recovered a verdict and judgment, in the Circuit Court of Shelby County, against W. A. Collier and his wife, Alice
The injuries were sustained by the plaintiff while alighting from an elevator, in the Appeal Building, in the city of Memphis. The contention made- on behalf of plaintiff is that Mrs. Collier, at the time of the accident, was in possession of the Appeal Building by an agent collecting the rents, and that she is liable for the negligence of the employe in charge of the elevator. Among other defenses, the plea of coverture was interposed in behalf of Mrs. Collier. The proof shows that on June 7, 1892, W. A. Collier and his wife, Alice T. Collier, sold and conveyed to the Memphis Appeal Co. the property then known as the Appeal Building, situated on the northwest corner of Main and Jefferson Streets, in the city of Memphis, fronting about seventy-five feet on Main Street and running back one hundred and five feet on Jefferson Street. This property belonged, principally, to Mrs. Alice T. Collier, the more valuable portion thereof having been conveyed to hex-sole and separate use, and a part thereof as her general estate. Other' parts of said property were owned by said Collier and wife, under conveyances giving them estates by entireties. The consideration for the property conveyed by Collier and wife to the Memphis Appeal Co. was $250,000, $50,000 of which was payable in cash and $200,000 were to be paid in twenty years, as evidenced by coupon bonds, with semiannual interest coupons, maturing in twenty years.
He further states he did not appoint Cline by direction of his wife, nor, at the time, with her knowledge, but she may have known of it after-wards, “but don’t know.” That he left directly after the appointment for New York, and was not here when Cline was in there. Mr. Collier further stated that, when Cline was put in charge of the building, October 23, 1893, the Appeal Company, as owner, had anticipated the rents from most of the tenants. The company collected the notes, and discounted them, or used them as. collateral, leaving
The principal question presented for. our determination, is whether, upon the facts stated, Mrs. Collier, a married woman, is liable for the injuries sustained by the plaintiff in consequence of the negligence of the employe in charge of the elevator. In other words, was there such a relation of master and servant established between Mrs. Collier and the negligent employe as that the principle of respondeat superior applies.
The case of Merrill v. City of St. Louis, reported in 83 Mo., 244 (S. C., 53 Am. Rep., 576), cited by counsel for the defendant in error, is somewhat analogous to the present case. That was an action to recover damages for injuries sustained by the plaintiff, Hannah M. Merrill, in falling through a coal hole in the sidewalk of one of the streets of St. Louis. The legal title to the property abutting on the sidewalk, where the injury occurred, was in James M. Duffer, trustee for the sole and separate use of' his wife, Lucinda M. Duffer, both of whom were sued for the injury. It was further alleged that said premises were used by Duffer and wife, and that the hole in the sidewalk was used by them in conveying coal to the cellar under the house.
The case of Merrill v. St. Louis is to be distinguished from the case now being adjudged,, in several important attributes. It. appeared, in that case, that Mrs. Duffer owned the property adjoining the sidewalk as her,separate estate, while in this case, the Appeal Building was not the property of Mrs. Collier, either as a general or separate estate. The legal title was in Smith and Croft, trustees, to secure the note for $50,000 payable to Mrs. Collier. In the former case, the husband ‘ ‘ seems to have attended to renting and collecting rents thereon at times; at other times other persons attended to these matters, but whether under direction of the wife or husband, does not appear.” In the present case, there is no proof that W. A. Collier was the agent of his wife, or that he attended to the collection of rents for her benefit. The whole scope of the proof is that W. A. Collier, as president of the Appeal Co., put the building in the possession of J. M. Trezevant and N. E. Cline, respectively, at different times, for the collection of rents for the benefit of Mrs. Collier.
The next case cited by counsel for defendant in error is Flish v. Lindsay, 115 Mo., 1 (S. C., 37 Am. St. Rep., 374), which was an action against Jane Lindsay and her husband, Andrew J. Lindsay, for damages sustained by plaintiffs, in consequence of the falling of a party wall, alleged to have been
The Court, in discussing the liability of a feme covert for a tort, said, viz.: “At common law, the husband had almost absolute control over his wife’s person; was entitled, as a result of their marriage, to her society, services, and earnings, to her goods and chattels; had a right to reduce her choses in action to possession during her life; could collect the rents and profits of her real estate, and had entire control over her property. She was bound to obey him, was incapable of making contracts except for necessaries, so that, in law, they were regarded as one person. As a necessary consequence, he alone was liable for, and could be sued for, her torts and
In 14 Am. & Eng. Enc. L., 647, under the head of “Post-nuptial Torts,” the compiler says, viz.: “For all torts committed by a married woman during cov-erture, in person, except such as are committed under the coercion of her husband, and such as are intimately connected with her invalid contracts, and such as are committed against her husband, she is liable fully as if unmarried. Thus, she may be sued for assault and battery, for trespass, for conversion, for slander, for fraud, and false and fraudulent representations unconnected with her invalid contracts, for burning property, etc. But, at common law, she could not be held responsible for the act of another as her agent, because she could not contract, and therefore could not appoint an agent,” etc.
It is not claimed that the tort for which Mrs. Collier is sought to be held liable in this action, was committed by her in person, but that the rela
“If she is liable at all,” says the Supreme Court of Rhode Island, ‘ ‘ her liability must rest upon the same ground as that of any master or principal for the act of a servant or agent. The foundation of the rule, ‘respondeat superior, ’ is contract, express or implied, by means of which the servant stands in the place of the master, so that his act is regarded as the act of the master. If, therefore, there is not, and cannot be, a contract of hiring,, there can be no representation of one by the other, and no ground for the application of the rule. There is no substantial difference between holding a married woman liable directly on a contract, or indirectly for a breach of a duty imposed upon her by contract. Although the plaintiff is not a party to a contract with her, yet, when he asserts a relation, based upon a contract, as the foundation of a consequent breach of duty, his position is essentially the same as one who sets up the same contract in order to recover directly for its breach. If we should say she is liable for the tort because of the relation, we should say there was a contract
Mr. Cooley, in his work on Torts, after stating the rule in respect of the joint and several liability of husband and wife for the tortious conduct of the latter, remarks: “But the element of contract is as important here as in the law of infancy. The same reasons which would preclude the indirect redress of the infant’s breach of contract, by treating it as a tort, will preclude the like redress in the case of a
The common law on this subject has not been changed by statute in Tennessee. In the case now being decided, the Appeal Building, where the accident happened, was neither the general nor separate estate of Mrs. Collier, but a mere security for the company’s indebtedness to her, and, under the authorities, it is clear she had no power to appoint an agent, and is not responsible for the negligence of those in charge of the elevator. It is wholly immaterial that the tiote secured by the deed of trust was payable to the sole and separate use of Mrs. Collier, since, in our opinion, her power to appoint an agent is determined^ by the character of her interest in the real
The theory upon which the liability of Mrs. Collier was submitted to the jury, is indicated in the following instructions given in charge to the jury, to wit: “Who was in possession of that building and elevator is the first question to establish.. Until this is ascertained from the evidence, you have no. right to consider any other question, and this means that until the evidence establishes to your satisfaction that Mrs. Alice T. Collier was in possession, and was running and operating the elevator by her servant, you need consider no other question.”
The Court then proceeds, viz.: “If you find from the evidence that her brother, Macon Trezevant, had been put in possession for her sole and separate use and benefit, and that she knew that fact and did not repudiate it, then she was in possession, and could not be deprived of it except by her consent. So that whatever action might have been taken after-wards by her husband and attorney, without her consent, could not change her possession to anyone else. And if you find that her possession was for her sole and separate use and benefit, to secure her in the collection of the rents and profits to be applied to a debt held by her to her- sole and separate use, then it became her duty to have such servants in her employ to run and operate the elevator carefully and safely,” etc.
This charge was clearly erroneous, for the rea
On this subject the Court was in error in refusing the ninth request submitted by counsel for Mrs. Collier, viz.:
“9. If you shall find that Macon Trezevant -was put in possession, but find that thereafter one Cline was put into possession of the property, without the knowledge or consent or acquiescence of Mrs. Collier, and that this accident occurred during Cline’s possession, then Mrs. .Collier cannot be considered to have been in possession of the property so as to make her liable for the negligence of Cline or his employes.”
Again, the Court erred in refusing to give in charge to the jury the fourth request submitted by counsel for Mrs. Collier, viz.: ‘ ‘ The fact that the Memphis Appeal Co., the owner of the property, executed a trust deed thereon to secure Mrs. Collier, in a note payable to her sole and separate use, did not create in her a separate estate in the property covered by the trust deed, and that therefore, having no separate estate in the Appeal Building, she had no power, as a married woman, to appoint an agent to take charge of and manage the property, nor did the Appeal Co. or her husband, acting for the company, have any power to appoint for her an agent, and if you find that Cline was
The Court was also' in error in refusing the eighth request respecting the liability of W. A. Collier, the husband of Mrs. Collier, as follows, to wit: ‘'If you find that the defendant, W. A. Collier, was not the owner of the Appeal Building at the time the injury occurred, and was not such owner at the time Cline was put in possession thereof by the Appeal Company, and find that Cline was put in possession by the Appeal Company, and that defendant, Collier, was not in possession of the property at the time the accident occurred, and had no control thereover, and further find upon the last charge-hereinbefore given, that the defendant, Mrs. Collier, is not liable, then plaintiff cannot recover against W. A. Collier. In such case he (defendant Collier) is not a wrongdoer, and cannot be sued as such.”
The declaration in this case alleged that Mrs. Collier was in possession of the property at the time of the accident, and that through the negligence of her servants and agents the injury occurred, and does not proceed upon the idea that it was through the negligence of W. A. Collier or his agents. If, therefore, no liability was fixed against Mrs. Collier, there is no ground upon which liability could be adjudged against Mr. Collier.
For the reasons indicated, the judgment is reversed, and the cause remanded.