FILED

October 27, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

1 October 27, 1997

2 FOR PUBLICATION

3

4 IN THE SUPREME COURT OF TENNESSEE

5 AT JACKSON

6

7

8 WILLIAM GAYLE WARREN, (

9 (

10 Plaintiff-Appellant, (

11 ( McNairy Circuit

12 (

13 v . ( Hon. Jon Kerry Blackwood,

14 ( Judge

15 (

16 ( S. Ct. No. 02S01-9602-CV-00006

17 THE ESTATE OF JERRY N. KIRK, (

18 DECEASED AND BELTON DUNCAN d/b/a (

19 DELTA TREE SERVICE, (

20 (

21 Defendant-Appellee. (

22

23

24

For Plaintiff-Appellant 25 : For Defendant-Appellee :

26

27 Joseph C. Langston Stephen Craig Kennedy

28 Langston, Langston, Michael Deusner & Kennedy

29 & Bowen, P.A. Selmer

30 Booneville, MS

31

32 Kent E. Smith

33 Webb, Sanders, Deaton, 

34 Balducci, Smith & Faulks

35 Oxford, MS

36

37

38

39

40

41

42

43 O P I N I O N

44

45

46 JUDGMENT OF TRIAL COURT AND

47 JUDGMENT OF COURT OF APPEALS

48 REVERSED; CASE REMANDED. REID, J.

49 This case presents for review the decision of the Court
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1 of Appeals affirming the trial court’s grant of summary judgment

2 for the owner of a vehicle in an action for personal injuries

3 caused by the negligent operation of the vehicle. The Court of

4 Appeals found that there is no genuine issue of material fact as to

5 the existence of a master-servant relationship between the driver

6 and the owner and dismissed the complaint against the owner. This

7 Court concludes that the lower courts erred in granting summary

8 judgment.

9

10 I

11

12 The plaintiff, William Gayle Warren, alleges that on

13 October 19, 1991 he was driving a tractor-trailer on U.S. Highway

14 45 in McNairy County; that at that time and place the defendant

15 Jerry N. Kirk, now deceased, was driving a pickup truck in the

16 opposite direction; that Kirk’s vehicle crossed the center line and

17 struck the plaintiff’s vehicle; and that Kirk was killed and the

18 plaintiff was injured as the result of the collision. The

19 complaint further charges that the pickup truck was owned by the

20 defendant Belton Duncan, d/b/a Delta Tree Service and that Kirk was

21 “an agent and employee” of Duncan. 

22

23 The defendant Duncan filed an answer in which he denied

24 that the plaintiff is entitled to recover from him. He states in

25 his answer that he “admits that Jerry N. Kirk was employed by

26 Belton Duncan d/b/a Delta Tree Service, but specifically denies

27 that Jerry N. Kirk was acting as the employee or agent of the
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1 defendant Belton Duncan d/b/a Delta Tree Service or was on or about

2 any business of Belton Duncan d/b/a Delta Tree Service at the time

3 of the accident.” 

4

5 Duncan’s motion for summary judgment asserts that there

6 is no genuine issue of material fact and that he is entitled to

7 judgment as a matter of law. Duncan’s deposition and affidavit

8 filed in support of the motion state that “Kirk had permission to

9 drive Duncan’s vehicle, but only during working hours,” “Kirk [was]

10 not working on the date of the accident,” “the only time Duncan

11 ever gave Kirk permission to use the vehicle outside of working

12 hours was if they were doing a private job,” “on the date of the

13 accident, there was no type of private work being done,” “Duncan

14 had no knowledge that Kirk was using the truck on the date of the

15 accident until after the accident and had never given Kirk

16 permission to be driving the truck on that date,” and “on the date

17 of the accident, Kirk was not on or about any business of Duncan

18 and was not acting on Duncan’s behalf in furtherance of any of his

19 business.” 

20

21 In opposition to the motion, the plaintiff submitted two

22 affidavits in which the affiants state, “I have personal knowledge

23 that Jerry Kirk had permission from Belton Duncan to use his

24 employer’s equipment on the weekends and during other off duty

25 hours.” The plaintiff also filed another affidavit in which the

26 affiant made the above statement and added, “working on weekends

27 using equipment.” 
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1 The record shows that Duncan was a resident of Missouri

2 and provided “tree services” for several electric transmission

3 companies, including Pickwick Electric Cooperative, Gibson County

4 Electric Cooperative, and Arkansas Power and Light Company; that

5 the deceased Kirk was the foreman of a crew working on a contract

6 with Pickwick Electric Cooperative at the time of the accident;

7 that the crew regularly worked on the Pickwick job four days a

8 week; and that the crew worked on “private jobs” when available

9 after regular working hours and on days off. The record further

10 shows that Kirk was in charge of Duncan’s vehicles and equipment,

11 that he selected a place where the vehicles were kept when not in

12 use and that Kirk was authorized to make preliminary contacts for

13 “private work.” The record does not show the time (day or night)

14 at which the accident occurred or the purpose of the trip. 

15

16 I I

17

18 The standard for review of a trial court’s grant of

19 summary judgment is de novo with no presumption of correctness. 

Carvell v. Bottoms 20 , 900 S.W.2d 23, 26 (Tenn. 1995). Summary

21 judgment is appropriate where “the pleadings, depositions, answers

22 to interrogatories, and admissions on file, together with the

23 affidavits, if any, show that there is no genuine issue as to any

24 material fact and that the moving party is entitled to a judgment

25 as a matter of law.” Tenn. R. Civ. P. 56.03.

26

27 [S]ummary judgment is appropriate where: (1)

28 there is no genuine issue with regard to the
1

Tenn. 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

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1 material facts relevant to the claim or defense

2 contained in the motion, Byrd v. Hall , 847

3 S.W.2d 208, 210 (Tenn. 1993); and (2) the

4 moving party is entitled to a judgment as a

5 matter of law on the undisputed facts. 

6 Anderson v. Standard Register Co. , 857 S.W.2d

7 555, 559 (Tenn. 1993). The moving party has

8 the burden of proving that its motion satisfies

9 these requirements. Downen v. Allstate Ins.

10 Co. , 811 S.W.2d 523, 524 (Tenn. 1991). When

11 the party seeking summary judgment makes a

12 properly supported motion, the burden shifts to

13 the nonmoving party to set forth specific facts

14 establishing the existence of disputed,

15 material facts which must be resolved by the

16 trier of fact. Byrd , 847 S.W.2d at 215.

17

18 . . . Courts must view the evidence in the

19 light most favorable to the nonmoving party and

20 must also draw all reasonable inferences in the

21 nonmoving party’s favor. Byrd , 847 S.W.2d at

22 210-211. Courts should grant a summary

23 judgment only when both the facts and the

24 inferences to be drawn from the facts permit a

25 reasonable person to reach only one conclusion. 

26 Id.

27

28

29

30 Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). 

31

32 III

33

34 The plaintiff insists that summary judgment does not lie

35 in this case for two reasons: in an action for injury to persons

36 and/or property caused by the negligent operation or use of an

37 automobile, proof of ownership of the vehicle pursuant to Tenn.

Code Ann. § 55-10-311 (1993) 1

38 constitutes evidence of a master-
evidence 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.

 

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1 servant relationship sufficient to withstand a motion for summary

2 judgment; and, in the alternative, the evidence considered on the

3 motion for summary judgment creates a genuine issue with regard to

4 the relationship between Kirk and Duncan at the time of the

5 accident.

6

7 Duncan responds that the “presumption” which arises

8 pursuant to Tenn. Code Ann. § 55-10-311 upon proof of ownership was

9 rebutted by evidence that Kirk was not operating Duncan’s vehicle

10 within the course and scope of his employment.

11

12 The statute provides that proof of ownership is prima

facie evidence 13 that the vehicle was being operated with the consent

14 of the owner by the owner’s servant within the course and scope of

15 the servant’s employment. 

16

17 In Hamrick v. Spring City Motor Co. , 708 S.W.2d 383

18 (Tenn. 1986), the Court noted that since proof of ownership under

19 the l957 amendment to Tenn. Code Ann. § 55-10-311 is evidence of
2

When enacted in 1921, the statute provided that proof of ownership of a

vehicle was “ prima facie evidence, 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 facie evidence” 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. 

3

See 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).

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the master-servant relationship, rather than merely a presumption, 21

2 “a serious question is presented as to whether or not this prima

3 facie case can be overcome pre-trial by motion for summary

4 judgment. Id. at 387. In that case, the Court stated: 

5

6 [S]ummary judgment proceedings do not involve

7 findings of fact or weighing of evidence. They

8 were not designed to match statutory “ prima

9 facie ” cases against rebutting proof or to

10 determine whether a party has carried the

11 requisite burden of proof. They are merely to

12 dispose of legal questions upon undisputed

13 facts.

14

15

16

17 Id. at 388. And further:

18

19

20

21 [S]ummary judgment is not ordinarily the proper

22 procedure for determining whether a prima facie

23 case has or has not been overcome by

24 countervailing evidence.

25

26

27

28 Id. at 389. The Court discussed in that case the application of

Tenn. Code Ann. § 55-10-311 to motions for directed verdicts 3

29 as

30 well as motions for summary judgment and observed that the denial

31 of a motion for summary judgment does not mean that the case must

32 be submitted to the jury. 
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1 The overruling of a motion for summary judgment

2 does not necessarily mean that the case will go

3 to a jury at a trial, because the evidence

4 adduced at trial may be significantly different

5 from that contained in affidavits or

6 depositions heard pre-trial on summary judgment

7 proceedings. All that the overruling of a

8 motion for summary judgment indicates is that

9 the case should proceed further. Whether it

10 will ever go to a jury or whether it will be

11 disposed of on directed verdict pursuant to

12 Rule 50, Tenn. R. Civ. P., depends upon the

13 record developed at trial.

14

15

16

Id. 17 at 388 (citations omitted).

18

19

20

21 The Court in Hamrick stopped short of holding that proof

22 of ownership will defeat a motion for summary judgment in every

23 case, stating, “There may be some instances where summary

24 disposition could be warranted.” Id. at 389. However, the record

25 in the case before the Court does not show this to be a case in

26 which summary judgment is warranted. The evidence does not show

27 the purpose of the trip on which the owner’s employee was driving

28 the owner’s vehicle. Kirk had Duncan’s expressed permission to

29 operate the vehicle during work, travelling to and from work, and

30 transporting other employees to and from work. The prohibitions on

31 the use of the vehicle stated by Duncan in his deposition and

32 affidavit do not necessarily proscribe Kirk’s operation of the

33 truck at the time of the accident in the course and scope of his

34 employment. For example, Kirk was authorized by Duncan to make

35 preliminary arrangements regarding “private work.” The working

36 arrangement between Duncan and Kirk indicate that Kirk had duties

37 beyond the performance of the contracts with Duncan’s customers. 
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1 Kirk was obligated to keep the chain saws and other equipment in

2 operating condition, he was required to find convenient locations

3 at which to park the vehicles, and he was responsible for seeing

4 that his crew was available for work. In summary, he was

5 responsible for all the duties incident to his job as foreman for

6 an absentee owner. As to those duties, Kirk had at least implicit

7 permission to use the pickup truck. The “agency relationship does

8 not require an explicit agreement, contract, or understanding

between the parties.” Harben v. Hutton 9 , 739 S.W.2d 602, 606 (Tenn.

10 Ct. App. 1987) (citing Electric Power Bd. of Metr. Gov’t. v. Woods ,

11 558 S.W.2d 821, 824 (Tenn. 1977). The evidence presented on the

12 motion for summary judgment is not conclusive proof that Kirk was

13 not acting within the course and scope of his employment at the

14 time of the accident. 

15

16 I V

17

18 The judgments of the trial court and Court of Appeals are

19 reversed, and the case is remanded to the trial court for further

20 proceedings.

21

22 Costs are taxed to the defendant Belton Duncan.

23

24 _______________________________

25 Reid, J.

26

27 Concur:

28

29 Anderson, C.J., Drowota, Birch,

30 and Holder, JJ.