# FILED

October 27, 1997 Cecil Crowson, Jr. Appellate Court Clerk October 27, 1997 1 FOR PUBLICATION 2 3
IN THE SUPREME COURT OF TENNESSEE 4
AT JACKSON 5 6 7 WILLIAM GAYLE WARREN, ( 8 ( 9 Plaintiff-Appellant, ( 10 ( McNairy Circuit 11 ( 12 v . ( Hon. Jon Kerry Blackwood, 13 ( Judge 14 ( 15 ( S. Ct. No. 02S01-9602-CV-00006 16 THE ESTATE OF JERRY N. KIRK, ( 17 DECEASED AND BELTON DUNCAN d/b/a ( 18 DELTA TREE SERVICE, ( 19 ( 20 Defendant-Appellee. ( 21 22 23 24 For Plaintiff-Appellant : For Defendant-Appellee: 25 26 Joseph C. Langston Stephen Craig Kennedy 27 Langston, Langston, Michael Deusner & Kennedy 28 & Bowen, P.A. Selmer 29 Booneville, MS 30 31 Kent E. Smith 32 Webb, Sanders, Deaton, 33 Balducci, Smith & Faulks 34 Oxford, MS 35 36 37 38 39 40 41 42 O P I N I O N 43 44 45 JUDGMENT OF TRIAL COURT AND 46 JUDGMENT OF COURT OF APPEALS 47 REVERSED; CASE REMANDED. REID, J. 48 This case presents for review the decision of the Court 49-2-

of Appeals affirming the trial court’s grant of summary judgment 1 for the owner of a vehicle in an action for personal injuries 2 caused by the negligent operation of the vehicle. The Court of 3 Appeals found that there is no genuine issue of material fact as to 4 the existence of a master-servant relationship between the driver 5 and the owner and dismissed the complaint against the owner. This 6 Court concludes that the lower courts erred in granting summary 7 judgment. 8 9

I 10 11 The plaintiff, William Gayle Warren, alleges that on 12 October 19, 1991 he was driving a tractor-trailer on U.S. Highway 13 45 in McNairy County; that at that time and place the defendant 14 Jerry N. Kirk, now deceased, was driving a pickup truck in the 15 opposite direction; that Kirk’s vehicle crossed the center line and 16 struck the plaintiff’s vehicle; and that Kirk was killed and the 17 plaintiff was injured as the result of the collision. The 18 complaint further charges that the pickup truck was owned by the 19 defendant Belton Duncan, d/b/a Delta Tree Service and that Kirk was 20 “an agent and employee” of Duncan. 21 22 The defendant Duncan filed an answer in which he denied 23 that the plaintiff is entitled to recover from him. He states in 24 his answer that he “admits that Jerry N. Kirk was employed by 25 Belton Duncan d/b/a Delta Tree Service, but specifically denies 26 that Jerry N. Kirk was acting as the employee or agent of the 27-3-

defendant Belton Duncan d/b/a Delta Tree Service or was on or about 1 any business of Belton Duncan d/b/a Delta Tree Service at the time 2 of the accident.” 3 4 Duncan’s motion for summary judgment asserts that there 5 is no genuine issue of material fact and that he is entitled to 6 judgment as a matter of law. Duncan’s deposition and affidavit 7 filed in support of the motion state that “Kirk had permission to 8 drive Duncan’s vehicle, but only during working hours,” “Kirk [was] 9 not working on the date of the accident,” “the only time Duncan 10 ever gave Kirk permission to use the vehicle outside of working 11 hours was if they were doing a private job,” “on the date of the 12 accident, there was no type of private work being done,” “Duncan 13 had no knowledge that Kirk was using the truck on the date of the 14 accident until after the accident and had never given Kirk 15 permission to be driving the truck on that date,” and “on the date 16 of the accident, Kirk was not on or about any business of Duncan 17 and was not acting on Duncan’s behalf in furtherance of any of his 18 business.” 19 20 In opposition to the motion, the plaintiff submitted two 21 affidavits in which the affiants state, “I have personal knowledge 22 that Jerry Kirk had permission from Belton Duncan to use his 23 employer’s equipment on the weekends and during other off duty 24 hours.” The plaintiff also filed another affidavit in which the 25 affiant made the above statement and added, “working on weekends 26 using equipment.” 27-4- The record shows that Duncan was a resident of Missouri 1 and provided “tree services” for several electric transmission 2 companies, including Pickwick Electric Cooperative, Gibson County 3 Electric Cooperative, and Arkansas Power and Light Company; that 4 the deceased Kirk was the foreman of a crew working on a contract 5 with Pickwick Electric Cooperative at the time of the accident; 6 that the crew regularly worked on the Pickwick job four days a 7 week; and that the crew worked on “private jobs” when available 8 after regular working hours and on days off. The record further 9 shows that Kirk was in charge of Duncan’s vehicles and equipment, 10 that he selected a place where the vehicles were kept when not in 11 use and that Kirk was authorized to make preliminary contacts for 12 “private work.” The record does not show the time (day or night) 13 at which the accident occurred or the purpose of the trip. 14 15

I I 16 17 The standard for review of a trial court’s grant of 18 summary judgment is de novo with no presumption of correctness. 19 Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Summary 20 judgment is appropriate where “the pleadings, depositions, answers 21 to interrogatories, and admissions on file, together with the 22 affidavits, if any, show that there is no genuine issue as to any 23 material fact and that the moving party is entitled to a judgment 24 as a matter of law.” Tenn. R. Civ. P. 56.03. 25 26 [S]ummary judgment is appropriate where: (1) 27 there is no genuine issue with regard to the 281Tenn. Code Ann. § 55-10-311 (1993) provides as follows:

(a) In all actions for injury to persons and/or to property caused by the negligent operation or use of any automobile ... within this state, proof of ownership of such vehicle shall be prima facie

-5- material facts relevant to the claim or defense 1 contained in the motion, Byrd v. Hall , 847 2 S.W.2d 208, 210 (Tenn. 1993); and (2) the 3 moving party is entitled to a judgment as a 4 matter of law on the undisputed facts. 5 Anderson v. Standard Register Co. , 857 S.W.2d 6 555, 559 (Tenn. 1993). The moving party has 7 the burden of proving that its motion satisfies 8 these requirements. Downen v. Allstate Ins. 9 Co. , 811 S.W.2d 523, 524 (Tenn. 1991). When 10 the party seeking summary judgment makes a 11 properly supported motion, the burden shifts to 12 the nonmoving party to set forth specific facts 13 establishing the existence of disputed, 14 material facts which must be resolved by the 15 trier of fact. Byrd, 847 S.W.2d at 215. 16 17 . . . Courts must view the evidence in the 18 light most favorable to the nonmoving party and 19 must also draw all reasonable inferences in the 20 nonmoving party’s favor. Byrd, 847 S.W.2d at 21 210-211. Courts should grant a summary 22 judgment only when both the facts and the 23 inferences to be drawn from the facts permit a 24 reasonable person to reach only one conclusion. 25 Id. 26 27 28 29 Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). 30 31

III 32 33 The plaintiff insists that summary judgment does not lie 34 in this case for two reasons: in an action for injury to persons 35 and/or property caused by the negligent operation or use of an 36 automobile, proof of ownership of the vehicle pursuant to Tenn. 37 Code Ann. § 55-10-311 (1993) 1constitutes evidence of a master- 38evidence that the vehicle at the time of the cause of action sued on was being operated and used with authority, consent, and knowledge of the owner in the very transaction out of which the injury or cause of action arose, and such proof of ownership likewise shall be prima facie evidence that the vehicle was then and there being operated by the owner, or by the owner’s servant, for the owner’s use and benefit and within the course and scope of the servant’s employment. . . . (b) This section is in the nature of remedial legislation and it is the legislative intent that it be given a liberal construction.

-6- servant relationship sufficient to withstand a motion for summary 1 judgment; and, in the alternative, the evidence considered on the 2 motion for summary judgment creates a genuine issue with regard to 3 the relationship between Kirk and Duncan at the time of the 4 accident. 5 6 Duncan responds that the “presumption” which arises 7 pursuant to Tenn. Code Ann. § 55-10-311 upon proof of ownership was 8 rebutted by evidence that Kirk was not operating Duncan’s vehicle 9 within the course and scope of his employment. 10 11 The statute provides that proof of ownership is prima 12 facie evidencethat the vehicle was being operated with the consent 13 of the owner by the owner’s servant within the course and scope of 14 the servant’s employment. 15 16

In Hamrick v. Spring City Motor Co. , 708 S.W.2d 383 17 (Tenn. 1986), the Court noted that since proof of ownership under 18 the l957 amendment to Tenn. Code Ann. § 55-10-311 is evidence of 192When enacted in 1921, the statute provided that proof of ownership of a

vehicle was “prima facieevidence, and rais[ed] a presumption” that the vehicle was driven with the consent of the owner. 1921 Tenn. Pub. Acts ch. 162. In 1957, the statute was amended by adding the provision that “proof of ownership . . . shall be prima facieevidence” that the vehicle was “being operated by the owner, or by the owner’s servant, for the owner’s use and benefit and within the course and scope of his employment.” 1957 Tenn. Pub. Acts ch. 123.

3See also Haggard v. Jim Clayton Motors, Inc. , 216 Tenn. 625, 393 S.W.2d 292 (1965) (found judgment that trial court should have directed verdicts for the defendant to be error).

-7- the master-servant relationship, rather than merely a presumption, 2 1 “a serious question is presented as to whether or not this prima 2 faciecase can be overcome pre-trial by motion for summary 3 judgment. Id.at 387. In that case, the Court stated: 4 5 [S]ummary judgment proceedings do not involve 6 findings of fact or weighing of evidence. They 7 were not designed to match statutory “prima 8 facie” cases against rebutting proof or to 9 determine whether a party has carried the 10 requisite burden of proof. They are merely to 11 dispose of legal questions upon undisputed 12 facts. 13 14 15 16 Id.at 388. And further: 17 18 19 20 [S]ummary judgment is not ordinarily the proper 21 procedure for determining whether a prima facie 22 case has or has not been overcome by 23 countervailing evidence. 24 25 26 27 Id.at 389. The Court discussed in that case the application of 28 Tenn. Code Ann. § 55-10-311 to motions for directed verdicts3as 29 well as motions for summary judgment and observed that the denial 30 of a motion for summary judgment does not mean that the case must 31 be submitted to the jury. 32-8- The overruling of a motion for summary judgment 1 does not necessarily mean that the case will go 2 to a jury at a trial, because the evidence 3 adduced at trial may be significantly different 4 from that contained in affidavits or 5 depositions heard pre-trial on summary judgment 6 proceedings. All that the overruling of a 7 motion for summary judgment indicates is that 8 the case should proceed further. Whether it 9 will ever go to a jury or whether it will be 10 disposed of on directed verdict pursuant to 11 Rule 50, Tenn. R. Civ. P., depends upon the 12 record developed at trial. 13 14 15 16 Id.at 388 (citations omitted). 17 18 19 20 The Court in Hamrickstopped short of holding that proof 21 of ownership will defeat a motion for summary judgment in every 22 case, stating, “There may be some instances where summary 23 disposition could be warranted.” Id.at 389. However, the record 24 in the case before the Court does not show this to be a case in 25 which summary judgment is warranted. The evidence does not show 26 the purpose of the trip on which the owner’s employee was driving 27 the owner’s vehicle. Kirk had Duncan’s expressed permission to 28 operate the vehicle during work, travelling to and from work, and 29 transporting other employees to and from work. The prohibitions on 30 the use of the vehicle stated by Duncan in his deposition and 31 affidavit do not necessarily proscribe Kirk’s operation of the 32 truck at the time of the accident in the course and scope of his 33 employment. For example, Kirk was authorized by Duncan to make 34 preliminary arrangements regarding “private work.” The working 35 arrangement between Duncan and Kirk indicate that Kirk had duties 36 beyond the performance of the contracts with Duncan’s customers. 37-9-

Kirk was obligated to keep the chain saws and other equipment in 1 operating condition, he was required to find convenient locations 2 at which to park the vehicles, and he was responsible for seeing 3 that his crew was available for work. In summary, he was 4 responsible for all the duties incident to his job as foreman for 5 an absentee owner. As to those duties, Kirk had at least implicit 6 permission to use the pickup truck. The “agency relationship does 7 not require an explicit agreement, contract, or understanding 8 between the parties.” Harben v. Hutton, 739 S.W.2d 602, 606 (Tenn. 9 Ct. App. 1987) (citing Electric Power Bd. of Metr. Gov’t. v. Woods , 10 558 S.W.2d 821, 824 (Tenn. 1977). The evidence presented on the 11 motion for summary judgment is not conclusive proof that Kirk was 12 not acting within the course and scope of his employment at the 13 time of the accident. 14 15

I V 16 17 The judgments of the trial court and Court of Appeals are 18 reversed, and the case is remanded to the trial court for further 19 proceedings. 20 21 Costs are taxed to the defendant Belton Duncan. 22 23

_______________________________ 24 Reid, J. 25 26 Concur: 27 28 Anderson, C.J., Drowota, Birch, 29 and Holder, JJ. 30