Martin v. Lilly
| Decision Date | 07 January 1919 |
| Docket Number | 23,297 |
| Citation | 121 N.E. 443,188 Ind. 139 |
| Parties | Martin et al. v. Lilly |
| Court | Indiana Supreme Court |
Rehearing Denied March 11, 1919.
From Warrick Circuit Court; R. E. Roberts, Judge.
Action by Martin W. Lilly against Richard E. Martin and others. From a judgment for the plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)
Reversed.
Albert W. Funkhouser, Arthur Funkhouser, Robert D. Markel, Albert C Funkhouser, James T. Walker and Henry B. Walker, for appellants.
Robinson & Stilwell and Swan & Mason, for appellee.
Appellee, while riding on the rear seat of a motorcycle owned and operated by one Kale, collided with an automobile owned by appellant Richard W. Martin. The automobile at the time was being driven by appellant Joseph Schofield, who was accompanied by Richard Martin, infant son of appellant Richard W. Martin. Appellee obtained a verdict and judgment against the two Martins and Schofield for personal injuries caused by this accident.
The errors claimed are presented by motion for a new trial. They may be considered under three topics: (1) The verdict is not sustained by sufficient evidence, particularly as to appellant Richard W. Martin, the owner of the automobile. (2) Error in giving and refusing instructions. (3) Misconduct of appellee's counsel while examining jurors on the voir dire.
So far as the first question is concerned, the allegation in the complaint is that the automobile was being driven at the time of the accident by Martin, a son of the owner, and by appellant Schofield "for and on behalf of and in the business of the said defendant Richard W. Martin."
The evidence shows that appellant Richard W. Martin lives five or six miles from Evansville, Indiana, and about three and one-half miles from the scene of the accident; that he is a farmer and road contractor; that he bought the automobile in question for the use of the family, which consisted of two sons and a wife, and also for use in his business as road contractor; that he himself did not drive the car; that when he used it his son (the Richard Martin in this suit) drove it for him; that the car for about three weeks previous to the accident had been in a garage in Evansville for repairs; that the appellant Schofield, who had been or was a neighbor boy in the community where Martin lived, was a repair man working in this garage; that on the day of the accident appellant Schofield and the boy, Richard Martin, worked on the car in the garage in Evansville, putting on a starter and generator, which had during the previous three weeks been sent to the factory for repairs; that when they finished they drove the car out to appellant Richard W. Martin's home; that Schofield wanted Richard W. Martin to ride in the car to see that it was all right; that Richard W. Martin said he would take Schofield's word for it and did not want to see the car tried out; that Schofield and young Martin had agreed on the way out from Evansville that young Martin would bring young Schofield back in the car if his father would let him; that when young Martin asked, the father refused and said that Schofield should stay all night; that Schofield then said that he had to be back in the garage in Evansville that night; that then appellant Richard W. Martin said: "All right then, if you have to go you can take the car"; that Schofield, who was at the steering wheel at the time of this conversation, drove the car back towards Evansville and was driving the car at the time of the accident; that young Martin accompanied him in the car and was in the car at the time of the accident; that when they reached a point three and one-half miles from Richard W. Martin's home, going west on Lincoln avenue, they attempted to turn south on Weinbach avenue, and at this corner collided with the motorcycle in question, which was coming east on Lincoln avenue; that as a result of the collision appellee, who was riding on the rear seat of the motorcycle, suffered the injuries complained of.
This evidence not only does not sustain, but flatly contradicts, the allegation in the pleading. The car was being driven by, "for, and on behalf of" Joseph Schofield in his business and for his accommodation.
At first the courts, like the horses, seemed to be afraid of automobiles and were inclined to stretch the rule of respondeat superior and to hold the owner liable on one pretext or another whether the driver was acting for the owner or not. This departure from the reasonable and practicable rule, that the principal shall respond in damages for the torts of his agent only when the agent is acting for the principal, soon led to absurdities and injustice. And courts have been sitting up nights writing volumes to get back to the correct rule. Witness: Hays v. Hogan (1917), 273 Mo. 1, 200 S.W. 286, L. R. A. 1918C 715, and cases there cited, discussed, distinguished, analyzed and overruled. If the reader is not surfeited when he has examined this authority, then see Reilly v. Connable (1915), 214 N.Y. 586, 108 N.E. 853, L. R. A. 1916A 954, Ann. Cas. 1916A 659; Luckett v. Reighard (1915), 248 Pa. 24, 93 A. 773, Ann. Cas. 1916A 662; Smith v. Burns (1914), 71 Ore. 133, 135 P. 200, 142 P. 352, L.R.A. 1915A 1130, Ann. Cas. 1916A 666; Janik v. Ford Motor Co. (1914), 180 Mich. 557, 147 N.W. 510, 52 L. R. A. (N. S.) 294, Ann. Cas. 1916A 669, and notes appended to these cases in Annotated Cases 1916A.
An automobile is not a dangerous instrument. The rules of law are applied to it in the same manner as to other vehicles. (Authorities above.)
The verdict in this case was not sustained by sufficient evidence, so far as the appellant Richard W. Martin is concerned.
We now come to the instructions. Among other instructions given at the request of appellee, we find this:
This instruction is erroneous. The driver of this automobile was required to use the care which an ordinarily prudent person would exercise...
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