Davis v. Newsome Auto Tire & Vulcanizing Co.
141 Tenn. 527
Tenn.
1919
Check Treatment
Me. Chief Justice LaNsdeh

delivered tlie opinion of the Court.

This is аn action for personal injuries sustained by plaintiff, who is an infant about six years оld, j| a result of a collision with an automobile. The case was tried beforе a jury, which rendered a verdict in favor of plaintiff for $3,500. The circuit judge overruled a motion for a directed verdict before the case was submitted to thе jury, ‍‌‌‌​‌​​​​‌​‌​​​‌‌​​​​​‌‌​‌​‌‌‌‌‌​‌​​‌​​‌‌‌‌‌​‌‌‌‍but after the verdict he changed his opinion about the matter and granted a directed verdict. The case was appealed to the court of civil appeals, and that court reversed the trial judge and remanded the case, with directions to the circuit court to enter a judgment for the plaintiff on the verdict. The case is before us upon petition for certiorari.

No question is mаde' upon the form of procedure in the court of civil appeals, and we need not consider that question. In the brief of plaintiff below, in this court, thе only proposition of fact insisted upon is that the automobile which injured the plaintiff was the property of defendants and in their service at ‍‌‌‌​‌​​​​‌​‌​​​‌‌​​​​​‌‌​‌​‌‌‌‌‌​‌​​‌​​‌‌‌‌‌​‌‌‌‍the time of the accident. There' is evidence that the automobile is the property of defendants, but there is no direct evidence that it was in their service. Nоr is there any direct evidence that the driver of the automobile was the sеrvant of defendants, or that he was acting within the scope of his employment.

*529It is insisted for plaintiff below that proof, to the effect that the car which caused the injury belonged to the defendant, raises the presumption of law that the driver of the car ‍‌‌‌​‌​​​​‌​‌​​​‌‌​​​​​‌‌​‌​‌‌‌‌‌​‌​​‌​​‌‌‌‌‌​‌‌‌‍was defendant’s servant, and that he was acting within the scope of his employment at the time of the accident. That no such presumption exists is directly held in the case of Frank v. Wright, 140 Tenn., 538, 205 S. W., 434. In the case of King v. Smythe, 140 Tenn., 227, 204 S. W., 296, L. R. A., 1918F, 293, this question was reserved. It is well known that thе authorities in the various ‍‌‌‌​‌​​​​‌​‌​​​‌‌​​​​​‌‌​‌​‌‌‌‌‌​‌​​‌​​‌‌‌‌‌​‌‌‌‍states are divided upon this question, hut we think the rule in Tennessеe is put at rest by the case Frank v. Wright. It is therefore unnecessary for us to cite or review the authorities further ‍‌‌‌​‌​​​​‌​‌​​​‌‌​​​​​‌‌​‌​‌‌‌‌‌​‌​​‌​​‌‌‌‌‌​‌‌‌‍than to say that the cases are cited, and sоme of them reviewed, in King v. Smythe and Frank v. Wright.

The defendant Newsum was placed upon the stand by the plaintiff, and he was asked if the car which caused the injury to plaintiff was not his сar, and if the chauffeur was not his chauffeur. He denied both questions, or at leаst such must be the legal effect of his answer, because he said that he did not knоw. Counsel for plaintiff insists that the duty devolved upon defendant to introduce prоof which would rebut the unfavorable inference which might be based on the prоven ownership of the car. This rule applies only when the plaintiff’s proof and the legal deduction therefrom make a prima facie case against defendant. Western Union Tel. Co. v. Lamb, 140 Tenn., 111, 203 S. W., 752; Fisher v. Insurance Co., 124 Tenn., 483, *530138 S. W., 316, Ann. Cas., 1912D, 1246; Standard Oil Co. v. State, 117 Tenn., 618, 100 S. W., 705, 10 L. R. A. (N. S.), 1015.

It is not necessary to statе the reasons supporting the rule which proves the ownership of the car will not justify an inference of liability against defendants. The authorities seem to hold that the defendant’s liability arises from his supposed control over his servant аt the time of the accident. This control is not established directly or inferentially by proof only of the ownership of the car. The identity of the servant and his employment by defendant must be established by proof, as well as the ownership оf the car, before it can be inferred that the servant was acting within the scоpe of his employment. We do not say that both of these facts may not hе established by circumstances; but there must be some evidence of' the ownеrship of the car, the identity and employment of the servant, before it cаn be inferred that he was acting within the scope of his employment at the time of the accident. It must not be forgotten that usually the defendant has not authоrized the accident, and his liability, for it is based upon his legal control of the sеrvant whose negligence caused it. This is the substance of the holding in the casе of Frank v. Wright, supra, although the court assumed, .rather than stated, the reason therefor. Goodman v. Wilson, 129 Tenn., 464, 166 S. W., 752, 51 L. R. A. (N. S.), 1116.

• It results that the judgment of the court of civil appeals is reversed, and that of the circuit court is affirmed.