The first mentioned case is an action by a minor by next friend against the General Outdoor Advertising Company and Jack Hardy for personal injuries sustained in an automobile accident; and the other is an action by the father of the minor against the same defendants for loss of services of his minor child and medical expense incurred in the treatment of her injuries. It was charged that the defendant Hardy was operating an automobile which struck the minor at a street crossing in Memphis. The theory of liability against the defendant, General Outdoor Advertising Company, was grounded solely upon the doctrine of respondeat superior.
The cases were consolidated and upon the first trial verdicts were rendered for the plaintiffs and against the defendant, Jack Hardy, the damages in the minor’s ease being assessed at $10,000, and in the father’s case at $750. In the same verdict the jury reported their inability to agree as to the liability of defendant, General Outdoor Advertising Co. Judgments were accordingly rendered awarding recoveries against the defendant, Jack Hardy, and reciting the entry of mistrials as to the defendant, General Outdoor Advertising Company. Upon consideration of a motion for a new trial, remittitur of $2,500 in the minor’s ease was suggested by the trial Judge, which was accepted under protest, and that judgment has become final and it is not challenged.
The defendant, General Outdoor Advertising Co., filed its motions for new trials, grounded on the action of the trial Judge in declining to sustain its motion for a directed verdict made at the close of all the evidence. These motions were overruled and the defendant seasonably perfected and filed a wayside bill of exceptions, preserving the evidence heard upon the first trial.
At a subsequent term, the cases were again tried upon the issues, joined between the plaintiffs and the defendant, General Outdoor
We are first concerned with the assignment of error challenging the action of the trial Judge in overruling the motion of the defendant, General Outdoor Advertising Company, made at the close of the evidence heard on the first trial, for directed verdicts in its favor. The plaintiffs argue that this question cannot be considered for the reason that, although it was raised in the motion for a new trial filed following the mistrial as to the General Outdoor Advertising Company upon the first trial of the cases, it was not made a ground of the motion for a new trial following the verdict in the last trial. This was not necessary. The practice followed by the defendant was correct and not only warrants, but requires, a consideration of the question presented by the action of the trial Judge in overruling the motions for directed verdicts upon the first trial. Oliver Mfg. Co. v. Slimp, 139 Tenn., 297, 202 S. W., 60.
It is conceded that the automobile that struck the minor plaintiff belonged to Hardy individually and that the defendant, General Outdoor Advertising Company, had no interest therein. Therefore, before the jury would have been warranted in returning a verdict against that defendant they would have had to find that it had expressly or impliedly authorized Hardy to use his automobile for that purpose. Tucker v. Home Stores, Inc., 170 Tenn., 23, 91 S. W. (2d), 296, and cases cited.
Whether there was any evidence that would have warranted this conclusion is the determinative question.
The General Outdoor Advertising Company, as its name indicates, is engaged, in Memphis, in maintaining outdoor signboards for advertising purposes. Its local plant is located at Jefferson and Neely Streets. The defendant, Jack Hardy, was in its general employ. He was a member of the construction crew which repaired and constructed signboards. It was also a part of his duties to cut grass around the signboards when assigned to this work. For this purpose he was furnished suitable tools by his employer. His regular hours of work were from 8 a. m. to 4:30 p. m. Sometimes he worked overtime and was paid accordingly. On October 15, 1936,, about 6 o’clock p. m. Hardy, accompanied by a companion, was driving an automobile belonging to him personally, westwardly along Madison Avenue. The automobile struck the minor plaintiff at the intersection of Madison and Dudley Streets while she was crossing from the south to the north side of Madison. At the time of the accident there were some grass cutting tools on the floor of Hardy’s
There was testimony from a disinterested witness, who was not in any wise discredited, to the effect that immediately prior to the accident TIardy had been playing baseball at TIodges Field in Memphis, which is located on Jefferson Avenue east of the scene of the accident, and that he left that point at approximately 6 o’clock. It is nut essential, however, to a disposition of the case under consideration that this evidence be considered.
The contention of the plaintiffs is thus succinctly stated in the brief: ‘ ‘ The fact that Hardy had tools in his ear, coupled with the facts as admitted in the record, that he was employed by the defendant, General Outdoor Advertising Company, and part of his duties were to cut grass in front of signs; that the General Outdoor Advertising Company furnished all tools necessary in the work; that the workmen were required to return the tools each evening to the office of the General Outdoor Advertising Co.; and that Hardy was at the time of the accident headed toward the General Outdoor Advertising Co.; certainly make out a prima facie case that he was about the business of the defendant corporation and using his arrto-mobile with their knowledge and consent either express or implied, at the time of the accident.”
The theory of this contention apparently is that at the time of the accident Hardy was enroute from somewhere to his employer’s plant on Jefferson and Neely for the purpose of returning the latter’s grass cutting tools, which were in his car.
Assuming, without deciding, that, considered in the light most favorable to the plaintiffs, the evidence warranted an inference that at the time of the accident TIardy was en route to his employer’s place of business in discharge of a duty to return its tools, yet there was no evidence whatever that would have justified the further con-
The plaintiffs’ argument for a contrary Anew appears to be that, from the evidence, the employer generally furnished its employees with grass cutting tools with which to cut grass about its signs, and that tools of that kind were found in Hardy’s car at the time of the accident, the car being then headed in the direction of the plant, and that, therefore, the jury would have been warranted in inferring that Hardy was impliedly or expressly authorized to use his car for the purpose of returning the tools. We think this argument is manifestly unsound. In the first place, it ignores the testimony of the defendant’s local manager. But, apart from this, there was no direct evidence that the tools found in Hardy’s car belonged to the General Outdoor Advertising Company. At least that fact itself depended upon an inference from other facts with respect to which there Avas some evidence. Hence, under familiar rules, it could not be used as the basis for a further inference.
It is obvious from an examination of the case of Tucker v. Home Stores, Inc., supra, that it furnishes ample support for the conclusion indicated in this one.
The plaintiffs refer us to the case of Western Union Telegraph Co. v. Lamb, 140 Tenn., 107, 203 S. W., 752, as authority for their contention. The status of that case Avhen it Avas before the Supreme Court and the facts thereof are so essentially different in a determinative sense from the case at bar that it seems entirely unnecessary to discuss it.
The defendant argues that there are other defects in the proof which required that a verdict be directed in its favor, but the one we have pointed out, Ave think so clear that it is unnecessary to refer to any others. This view of the first trial of the case renders unnecessary a consideration of the qrrestions arising on the record of the second trial. The result is that the judgments are reversed and the suits dismissed at the plaintiffs’ cost.