Sears v. Moran

Decision Date06 March 1945
Docket Number28072.
Citation59 N.E.2d 566,223 Ind. 179
PartiesSEARS v. MORAN.
CourtIndiana Supreme Court

Appeal from Jay Circuit Court; B. G. Jenkins, Judge.

Roscoe D. Wheat, of Portland, for appellant.

Barnes Hickam, Pantzer & Boyd, of Indianapolis, Robert Smith and Frank Jaqua, both of Portland, and Floyd W. Burns, of Indianapolis, for appellee.

GILKISON Judge.

This is action to collect damages for the alleged wrongful death of Horace Sears. The complaint is in two paragraphs, in the first it is alleged that on May 30, 1942, the appellee, James J. Moran, employed Oscar Moore to drive his automobile for him, and that pursuant to said employment and at the direction of the defendant, Moore drove defendant around in the automobile for a while and then returned him to his law office, at which point the defendant alighted from the automobile, 'and then and their directed Moore as to his further duties regarding said automobile, * * *'. That pursuant to said further orders and directions Moore drove the automobile over the streets of the city of Portland and the public highways of Jay County. The complaint then, by proper averments, shows that while Moore was so driving defendant's automobile at said time, and because of his negligence he had a collision with an automobile in which Horace Sears was riding causing injuries to Sears which resulted in his death.

The cause was put at issue and tried by jury. At the conclusion of plaintiff's evidence, a motion for a peremptory instruction for defendant was sustained, and judgment was duly rendered for defendant. Motion for new trial was overruled, proper exceptions were reserved, and the cause appealed.

The question before us for determination is whether the evidence in the record is sufficient to sustain each of the material averments of the first paragraph of the complaint. In her brief the appellant, in substance, abandons her second paragraph of complaint, saying 'The only point for this Appellate Court to decide on this appeal is: Was Oscar Moore acting in the course of his employment at the time of the collision which caused the death of the decedent, Horace Sears?' The briefs of the parties are devoted solely to this point. We shall confine this opinion to a decision of that proposition.

In determining that proposition, we shall consider only the evidence most favorable to the appellant, and accept all inferences favorable to appellant that may be reasonably drawn from the evidence. And if there is any evidence, or any reasonable inference, that can be drawn from the evidence showing that at the time of the collision alleged, Oscar Moore was acting in the line of his duties, under his employment by appellee, the disputed proposition will be deemed sufficiently proven. Oleson v. Lake Shore & M. S. R. Co., 1896, 143 Ind. 405, 410, 42 N.E. 736, 32 L.R.A. 149. Haughton v. AEtna Life Ins. Co., 1905, 165 Ind. 32, 73 N.E. 592, 74 N.E. 613.

We shall not attempt to weigh the evidence, but we must examine it to ascertain whether there is any legal evidence, or reasonable inference, that the jury might properly consider as establishing the disputed proposition. Weis v. City of Madison, 1881, 75 Ind. 241, 254, 39 Am.Rep. 135.

In his answer the defendant admitted that on May 30, 1942 he hired one Oscar Moore to drive defendant's automobile to the cemetery and back, so that defendant and his wife might visit the cemetery. That after visiting the cemetery defendant directed Moore to drive to defendant's law office at Portland, where defendant got out of the car, and directed Moore to drive defendant's wife home, and return the car to the center of Portland, park it at a convenient place and immediately bring the keys to defendant at his office. This is the extent of defendant's admission concerning the questioned proposition of evidence. We have carefully read the evidence of...

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5 cases
  • Reinhart v. Ideal Pure Milk Co.
    • United States
    • Court of Appeals of Indiana
    • November 14, 1963
    ...Ind.App. 166, 168, 40 N.E.2d 1012; Polk Sanitary Milk Co. v. Berry (1938), 106 Ind.App. 29, 35, 36, 17 N.E.2d 860; Sears v. Moran (1945), 223 Ind. 179, 183, 59 N.E.2d 566; 35 Am.Jur., Master and Servant, § 555, p. 989; 12 I.L.E., Employment, § 232, notes 26 and 27 on page The announced theo......
  • Sears v. Moran, 28072.
    • United States
    • Supreme Court of Indiana
    • March 6, 1945
    ...223 Ind. 17959 N.E.2d 566SEARSv.MORAN.No. 28072.Supreme Court of Indiana.March 6, Death action by Edna M. Sears, administratrix of the estate of Horace Sears, deceased, against James J. Moran. Judgment for defendant, and plaintiff appeals. Affirmed. [59 N.E.2d 567]Appeal from Jay Circuit Co......
  • Marion Trucking Co. v. Byers, 18094
    • United States
    • Court of Appeals of Indiana
    • April 2, 1951
    ...collision Burkett was engaged in or about the appellant's business and was acting within the scope of his employment. Sears v. Moran, 1945, 223 Ind. 179, 59 N.E.2d 566; Meyer v. Manhattan Life Insurance Co., 1896, 144 Ind. 439, 43 N.E. 448; Frick v. Bickel, 1944, 115 Ind.App. 114, 54 N.E.2d......
  • Francis v. State, 27988.
    • United States
    • Supreme Court of Indiana
    • March 8, 1945
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