Opinion
C.A. No. 03A01-9504-CV-00125
Filed August 2, 1995.
Hon. Earle G. Murphy Judge, Affirmed And Remanded
Robert E. Pryor and Mark E. Floyd, Pryor, Flynn, Priest Harber, Knoxville, for appellant, William T. Rawls.
Janet L. Hogan, Hogan Hogan, Knoxville, for appellee.
OPINION
This action began with a declaratory judgment complaint filed by the appellee, Ohio Casualty Group of Insurance Companies, asking the court to decide whether or not an exclusion in a policy of motor vehicle liability insurance issued to the defendant, J. Ben Forrest d/b/a J. Ben Forrest Hardware and Furniture Company was applicable under the circumstances of this case. After a bench trial, the court found that the insurance policy excludes coverage. We affirm the judgment of the trial court.
The policy in question, policy number BAW 5054 87 41, is a business auto policy and. contains the following exclusion;
SECTION II — LIABILITY COVERAGE
A. COVERAGE
We will cover all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by "accident" and resulting from the ownership, maintenance or use of a covered "auto".
We have the right and duty to defend any "suit" asking for these damages. However, we have no duty to defend "suits" for "bodily injury" or "property damage" not covered by this Coverage Form. We may investigate any claim or "suit" as we consider appropriate. Out duty to defend or settle ends when the Liability Coverage Limit of Insurance has been exhausted by payment of judgments or settlements.
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B. EXCLUSIONS
This insurance does not apply to any of the following:
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5. FELLOW EMPLOYEE
"Bodily injury" to any fellow employee of the "insured" arising out of and in the course of the fellow employee' s employment
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William T. Rawls and James Massey were both employees of the insured. The trial court determined that the injury to William T. Rawls was caused by James Massey during the course of Mr. Massey's employment by the insured. He found, therefore, that the above exclusion applied. This appeal resulted.
The appellant has enumerated three issues for our consideration which can be reduced to the following:
1. Does the evidence preponderate against the finding of the trial court?
2. Did the plaintiff judicially admit that Mr. Rawls and Mr. Massey were acting outside the scope of their employment at the time of the accident?
We will address the second issue first. To establish judicial admissions, the appellant relies upon the following statements made in response to a motion for a more definite statement:
3. Upon information and belief, however, Mr. Massey and his co-worker, Mr. Rawls, were not pursuing the business of the employer at the time of this collision.
4. The question for the court in this case is whether a business auto liability policy, which anticipates use of vehicles in the furtherance of a particular business, provides coverage for this accident under facts and circumstances which Mr. Rawls admits in his motion and answer did not involve the furtherance of the employer' s business.
As authority for his position, the appellant cites us to John P. Saad and Sons v. Nashville Thermal, 642 S.W.2d 151 (Tenn. App. 1982) . Indeed, in Saad it is said; "Admissions in pleadings are judicial (conclusive) admissions, conclusive against the pleader until withdrawn or amended. McCormick on Evidence, 2nd Edition, § 265, p. 633; 31 C.J.S. Evidence § 301, p. 772, note 23." We do not disagree with the proposition advanced in Saad at the time Saad was decided. We do not believe, however, that the rule relating to judicial admissions as stated and applied in Saad still prevails.
The Tennessee Rules of Evidence were adopted effective January 1, 1990, and were in full force and effect at the time this case was heard.
Rule 803 (1.2) provides as follows:
(1.2) Admission by Party-Opponent. — A statement offered against a party that is (A) the party's own statement in either an individual or a representative capacity, or (B) a statement in which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by an agent or servant concerning a matter within the scope of the agency or employment made during the existence of the relationship under circumstances qualifying the statement as one against the declarant's interest regardless of declarant's availability, or (E) a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy, or (F) a statement by a person in privity of estate with the party. An admission is not excluded merely because the statement is in the form of an opinion. Statements admissible under this exception are not conclusive.
The Advisory Commission Comments to this section state:
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The final sentence is intended to abolish the distinction between evidentiary and judicial admissions. Unless made conclusive by statute or another court rule, such as T.R.C.P. 36.02 on requests for admission, all party admissions are simply evidentiary, not binding, and are subject to being explained away by contradicting proof.
While the Advisory Commission Comments are not binding, they are compellingly persuasive.
It should be noted that there is a distinction between "judicial admissions" and "judicial estoppel." The doctrine of "judicial estoppel" apparently was undisturbed by the adoption of the Tennessee Rules of Evidence.
Assuming arguendo and contrary to the Advisory Commission's Comments, that the rule in Saad still prevails, our inquiry must turn on whether or not the statements made in the response to a motion for a more definite statement are expressions of fact.
There are no cases in this jurisdiction which have come to our attention discussing the effect of a fact stated to be upon "information and belief" as opposed to a pure statement of fact within the context of a judicial admission. Should the position of the appellant be sustained, he would have been entitled to a judgment on the pleadings or on motion for summary judgment. We feel, therefore, that the matter can be likened to a motion for summary judgment and that the statements in the pleadings should be examined as if they were presented either in favor of or in opposition to a motion for summary judgment.
In Fowler v. Happy Goodman Family, 575 S.W.2d 496 (Tenn. 1978) the court dealing with the evidence filed in opposition to a motion for a summary judgment observed:
Absent any admissions in the respondent's pleadings which would support a claim of inducing fraud under either the majority or the minority view, petitioner was obligated to take depositions, demand answers to interrogatories, submit requests for admissions or, at a minimum, to file supporting affidavits containing facts which, in the language of Rule 56.05, "would be admissible in evidence" in support of his contention. His subjective belief and his other unspecified information are legally insufficient." (Emphasis added).
Fowler, at page 499.
It can be inferred from the language in Fowler, that statements made upon "information and belief" are not acceptable as or legally sufficient to establish a fact. It is merely a subjective statement of what the pleader believed to be true at the time.
Even if the rule of "Judicial Admission" as stated and applied in Saad still prevails, (which we do not accept), we are of the opinion that the statements in the appellee's response to a motion for a more definite statement are insufficient to give rise to the application of the rule. Accordingly, we find no merit in this issue.
We will next look to the preponderance of the evidence. We are guided by Rule 13(d), Tennessee Rules of Appellate Procedure. Findings of fact by the trial court in civil actions are reviewed de nova upon the record, accompanied by a presumption of the correctness of the finding unless the preponderance of the evidence is otherwise. No such presumption attaches to conclusions of law. See Adams v. Dean Roofing Co., 715 S.W.2d 341, 343 (Tenn. App. 1986)
As hereinbefore noted, the defendants James Massey and William T. Rawls were employees of the co-defendant J. Ben Forrest, Jr., d/b/a J. Ben Forrest Hardware and Furniture Company in Niota, Tennessee. At the time of the accident which gave rise to this action defendant, Massey, was driving a truck owned by the defendant, Forrest. The defendant, Rawls, was a passenger in the truck. The truck was struck by a Norfolk Southern train and Rawls was allegedly injured.
The defendant, Forrest, did not maintain worker's compensation insurance and was not covered under the Worker's Compensation laws because he employed less than five (5) employees.
Rawls and Massey had left the premises of their employer in the truck for the purpose of delivering a load of furniture to Tellico Plains. Mr. Massey was called as an adverse witness by the plaintiff. His testimony both on examination by the attorney for the plaintiff and cross-examination by the attorney for Mr. Rawls was consistent.
Mr. Massey testified that on the date of the accident he along with Mr. Rawls started from the store in Niota to deliver furniture to Tellico. The planned route was to take Highway 11 to Sweetwater and then Route 68 to Tellico. After they left the store, Mr. Massey remembered that he wanted to pick up some pictures of his niece but needed a card from his sister-in-law to do so. He decided to detour from the route he otherwise would have taken in order to stop at; his brother's house. When he left Highway 11 he started to cross the railroad tracks some 600 feet from Highway 11. As he started across the tracks, the truck was struck by a train.
He further testified that the trip to his brother's house had nothing to do with delivering furniture and if it hadn't been for the side trip they would not have been on the railroad tracks that day. He stated that he intended to possibly take another route from his brother's house to Tellico.
He testified that he felt comfortable taking the detour because it had been done before with the permission of his employer. He indicated that it didn't matter if he took a little side trip to make a personal errand because he was allowed to do that from time to time, so long as he didn't abuse the privilege. He agreed that Mr. Rawls had no business at his brother's house.
He was also asked the following questions and gave the following answers:
Q. And when you left your brother's house, if you had made it that far, you would have resumed delivering furniture?
A. Yes, sir.
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Q. And it didn't matter whether or not the trip had any thing to do with business like the one to go to the Wal-Mart to get some jeans?
A. Right.
Q. That was okay?
A. That was no problem at all for Mr. Forrest.
Q. That was one of the good things about working there wasn't it.
A. Yes, sir.
Mr. J. Ben Forrest, III, the general manager of the furniture store testified that he would have permitted Mr. Massey to take any route he liked on his way to this delivery and had no objections to the running of this incidental errand. Running such incidental errands was common and frequent practice in his business. He stated that he had suggested a route, but admitted that Mr. Massey was not required to follow the route. He stated that the back roads would also have been appropriate.
Mr. Forrest was also asked the following questions and gave the following answers:
Q. Was there any discussions or any conversations between you and Massey about his stopping anywhere on the way to Tellico.
A. No, sir.
Q. Did he ask permission to go to see brother's house?
A. No, sir. Could I — if he had asked we would have said it would have been okay.
Q. Did the store have an understanding with the drivers of this delivery truck about side stops or personal errands?
A. Yes, sir.
Q. What was your understanding?
A. well, if the guys, Jimmy didn't have a car and if, you know, and naturally he didn't have any mode of transportation. So if he wanted to stop and pick up some groceries or something, you know, like that, then we didn't mind.
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Q. And as far as Mr. Rawls is concerned, you wouldn't have expected him to do anything other than just continue in the vehicle with Mr. Massey once he made the decision to take a back route.
A. Yes.
Q. That's what you would have expected?
A. Yes.
Q. As a part of doing his work and fulfilling his job for you he should have stayed in the vehicle and continued on his drive with Mr. Massey?
A. Yes.
The only testimony in the case was that of Mr. Massey and Mr. Forrest. The only other evidence presented was a copy of the insurance policy in question. After receiving the evidence, the court took the matter under advisement and later issued his memorandum opinion. The memorandum opinion provided in pertinent part as follows:
This is a suit to determine whether the plaintiff has a duty to defend the co-defendant, James Massey, in a suit brought against him by William T. Rawls in the Knox County Circuit Court.
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The question to be decided in this case is whether at the time of the accident the employees were operating within the scope of their employment.
It is undisputed that the time of the accident the driver, Massey, had deviated from the route he was instructed to take i.e., Highway 11, however, it is clear from the proof which has been taken in this case that he had actual or implied permission to made an incidental deviation from the route.
IT IS THE OPINION OF THE COURT that the deviation taken by Massey was not such as to take the driver out of the scope of his employment and that, therefore, the auto liability policy carrier (sic) which is the basis of this suit excludes coverage.
A judgment was entered incorporating the memorandum opinion.
This case is somewhat unusual in that it is the reverse of the ordinary or more common situation, i.e., where the employer is trying to establish that the employee was not acting within the scope of his employment. Generally, the employer is trying to avoid vicarious liability for the acts of his employee. Nevertheless, however, we are of the opinion that the same rules of law prevail.
We concur with the conclusions reached by the trial court. In Craig v. Gentry, 792 S.W.2d 77 (Tenn. App. 1990), quoting from Leeper Hardware Company v. Kirk, 434 S.W.2d 620 (Tenn. App. 1968) we find the following:
The test in brief is this: If the work of the employer creates the necessity for travel [the employee] is in the course of his employment, though he is serving at the same time some purpose of his own. If, however, the work is merely incidental to travel, and the trip would act have been made but for the private purpose of the servant, he is out of the scope of his employment in making it.
Craig, at page 79.
In cases where the deviation is slight and not unusual, the court may, and often will, as a matter of law, determine the servant was still executing his master's business. So too, where the deviation is very marked and unusual, the court in like manner may determine that the servant was not on the master's business at all, but on his own. Cases falling between these extremities will be regarded as involving merely a question of fact to be left to the [trier of fact]. 5A Am. Jur., Section 636, page 630-631.
Caldwell v. Adams, 367 S.W.2d 804 (Tenn. App. 1962)
In Fitzgerld v. Wood, 238 S.W.2d 103 (Tenn. App. 1950), the court stated the following rule:
The gist of the matter is that the solution of the problem depends on the facts and circumstances of each case and unless there is some fact or circumstance indicating a benefit to the owner, the use is regarded as being for the personal benefit of the servant alone, in which event the master is not liable for the acts of the servant; if the facts indicate, however, that the use of the vehicle enables the servant to arrive earlier or remain longer at his work, or to shorten the time of his absence for meals or a particular meal, or the deviation for that purpose was slight, or that the use of the vehicle for such purpose is part of the contract ox' is customarily furnished, or any other special fact or facts from which a benefit to the master may be inferred, then the court . . . may find it to be within the scope of employment.
Fitzgerald v. Wood, page 105.
Here, the deviation from the employer's business was slight, and the employees customarily had permission to deviate from their employer's purpose. We believe that the facts and circumstances of this case create a situation which falls between the two extremities described in Caldwell, supra. We believe that the rules set out in Craig, Caldwell, and Fitzgerald are controlling and that the determination of whether' or not Mr. Massey was acting within or without the scope of his employment is a fact to be determined by the court.
The evidence does not preponderate against the findings of the trial court. Accordingly, the trial court is affirmed in all respects. Costs are taxed to the appellant and this case is remanded to the trial court for the collection thereof.
Herschel P. Franks, J., Charles D. Susano, Jr., J.