Vanderbilt Law Review


Edward R. Hayes

First Page



Establishing that Tortfeasor is a Servant of Defendant: Negligent operation of motor vehicles probably is the most prolific source of tort liability today. Within this area an important cause of litigation has been negligent operation by someone other than the owner of the vehicle. The initial common law approach to such cases was to hold the owner responsible if he himself were negligent, as by entrusting his car to a known incompetent driver, or if the negligent driver were the owner's servant acting within the course and scope of his employment.'


In Smith v. Phillips a pick-up truck, registered in defendant's name, and driven by one of two Negroes who admittedly were employees of defendant, collided with plaintiff's truck. The owner's defense against liability was that of the servants' frolic, without authority, in violation of express instructions. One Negro testified he had used the truck on an errand for his employer, returned it, then taken it again to go for a beer and to visit a girl friend. Evidence that he had pleaded guilty to a charge of using the truck without defendant's permission was not permitted to go to the jury.


Duties of Employer to Employee: There were two cases in which an employee sought recovery from his employer for injuries allegedly received on the job. One raises questions of the extent of the employer's duty; both involve employer defenses utilizing the traditional common-law argument of assumption of risk or contributory negligence.