Brady v. B. & B. Ice Co.

• Decision Date: 18 December 1931
• Citation: 242 Ky. 138,45 S.W.2d 1051
• Parties: BRADY et ux. v. B & B ICE CO. et al.
• Court: Kentucky Court of Appeals

45 S.W.2d 1051

242 Ky. 138

BRADY et ux. v. B & B ICE CO. et al.

Court of Appeals of Kentucky

December 18, 1931

Rehearing Denied March 1, 1932.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by William Brady and wife against the B & B Ice Company and the Ridley Ice & Coal Company. From a judgment for defendant plaintiffs appeal.

Affirmed.

See also 39 S.W.2d 252.

Arthur C. Gunther, of Louisville, for appellants.

Woodward Warfield & Hobson, of Louisville, for appellees.

CREAL C.

The appellants, William Brady and Pinkie Brady, are husband and wife, and appellees are corporations engaged in the manufacture and sale of ice in Louisville.

On August 25, 1928, Mrs. Brady, on alighting from a street car at the intersection of Nineteenth and Rowan streets in Louisville, was struck and severely injured by a Ford truck which belonged to appellee the Ridley Ice & Coal Company. This truck had been lent by the company to William Loyal in April, 1928, to be used by him for the purpose of peddling ice which he purchased from appellee companies, and he had possession and control of it from that time until after the accident occurred.

At the time of the accident, Loyal was engaged in delivering ice to customers; however, the truck was being driven by Barney Sales. As we gather from the record, appellee companies are under the same management and control, as one Mr. Boone is president of both companies and they use a storage garage in common. Loyal would purchase from either company the ice which he peddled, and prior to the time the Ridley Ice & Coal Company lent him the Ford truck, he had been furnished one by the B & B Ice Company.

In their joint petition filed in the Jefferson circuit court Mrs. Brady sought to recover from appellee the B & B Ice Company for the injuries she sustained in the accident, and Mr. Brady sought to recover from it for the loss of her services as a result of her injuries.

In the original petition, it is alleged that at the time of the accident, Loyal was the agent, servant, and employee of appellee the B & B Ice Company, in the use and operation of the truck. In their amended petition, the Ridley Ice & Coal Company is made a party, and it is alleged that it is the owner of the truck which was being driven by an agent, servant, and employee of both companies who was acting within the scope of his employment.

When the case was called for trial, appellants, over the objections of appellees, were permitted to file a second amended petition in which it is alleged that the Ridley Ice & Coal Company permitted the driver of the truck to have entire and exclusive control thereof, when he was not competent to drive same; that the driver was a habitual addict of intoxicating liquors and under the influence of such liquors during all the time appellees permitted him to use and have the care and control of the truck, and that appellees knew, or by the exercise of ordinary care could have known, of his habits and carelessness.

From a judgment for appellees based on a directed verdict, this appeal is prosecuted.

In addition to the facts hereinbefore stated, it is shown by the proof that at the time of the accident, the truck was being driven along the street in the same direction as was the street car from which Mrs. Brady alighted. Barney Sales, who was driving the truck, testified that he attempted to bring the truck to a stop at the rear of the street car when it stopped at the intersection, and would have done so but for the fact that Loyal attempted to throw his foot on the brake, but instead put his foot upon the accelerator and caused the truck to go forward and strike Mrs. Brady; that at the time, he was driving the truck at the request of Loyal, who was intoxicated to such a degree that he was unable to drive it. The evidence clearly shows that Mrs. Brady was seriously injured and that her injuries were due to the negligent operation of the truck.

Loyal testified that at the time of the accident he was half drunk, but George Lindeman, the policeman who arrested him, testified that he was very drunk and incapable of driving the truck. He testified that he and Mr. Boone, the president of the companies, had been intimately acquainted for 15 or 20 years and that he had been buying ice from Mr. Boone or from the companies of which he was president for 10 years. Loyal further testified that he was a habitual drunkard and that the fact was known to the public generally; that it was his custom to commence drinking after he had gotten his first load of ice from the factory in the early morning; that in the course of a day, it was necessary for him to return to replenish his supply, and on some of these return trips he would be in a state of intoxication. The evidence indicates, however, that at such times he was seen only by the employee of the company who weighed and delivered the ice to him, and not by Mr. Boone or any of the other officials. He stated that Mr. Boone had warned him not to drink, but that this was in the nature of a general warning issued to all drivers. On being asked if he were ever drinking when such a warning was given, he replied: "I was drinking some every day, *** yes sir."

Acquaintances and business associates of Loyal were introduced as witnesses and testified as to his habits with respect to the use of intoxicants. One witness testified that he had known him for 10 years and had seldom if ever, seen him sober; that during the summer of 1928, he often saw Loyal driving the truck when he was drunk. A regular customer of Loyal's testified that he had often been drunk during business hours and while engaged in the delivery of ice.

Under the proof, the only interest of appellees in the business transaction by Loyal was the sale of ice to him. They had no control of his business or of the movements of the truck and had no share in the profits arising from his sale of ice. He was not subject to their orders in any particular. While there is evidence conducing to show that the truck was furnished to Loyal as an inducement to him to purchase ice from appellees, there is nothing further to indicate the relationship of master and servant or principal and agent hence if liability imposes upon appellees or upon either of them, it does not, under the...