Adams v. Hilton

• Decision Date: 03 December 1937
• Citation: 110 S.W.2d 1088,270 Ky. 818
• Parties: ADAMS v. HILTON.
• Court: Kentucky Court of Appeals

110 S.W.2d 1088

270 Ky. 818

ADAMS v. HILTON.

Court of Appeals of Kentucky

December 3, 1937

Appeal from Circuit Court, Letcher County.

Action by Gordon Hilton against Sam Adams. From an adverse judgment defendant appeals.

Affirmed.

Andrew E. Auxier, of Pikeville, and Charles W. Morris, of Louisville, for appellant.

French Hawk, of Whitesburg, and Bruce & Bullitt, of Louisville, for appellee.

MORRIS Commissioner.

There were four cases tried together below but brought here on four separate appeals. Adams v. Newman, 270 Ky. 827, 110 S.W.2d 1093. The defendants below, in each case, were Sam Adams, owner of a taxicab business, and his son Chester, who at the time of the accident was driving the car in which the four plaintiffs, Hilton, Willis, Newman, and Croft, were passengers.

Sam Adams, the owner of the taxi business at Jenkins, had complied with the automobile laws relating to public carriers, including the carrying of liability insurance. On November 3, 1935, there was a football game at Blackey between the Jenkins school and another team. The towns are about thirty-four miles distant from each other. The passengers, ranging in age from nineteen to twenty-five, were employees of a coal company at Jenkins. About noon that day they met in a poolroom in Jenkins and decided to attend the game. They went to the taxi stand and made arrangements with Chester, who was in charge of his father's business, and each paid him $1 for the round trip. On the way to Blackey there were two other passengers, Elkins and Griffey, the latter leaving the taxi before reaching Blackey; Elkins going on to the game, but not returning. When the party reached the ball park, Chester drove the taxi into the grounds and the boys separated.

On the return trip the taxi had gone about ten miles, when in rounding a curve down a mountain side toward Sand Lick Creek being approached by another car, Chester pulled it over upon the shoulder, and in trying to get back on the pavement lost control; the car skidded into the creek, resulting in injuries to the driver and each of the four passengers.

Each appellee (in the four appeals) filed separate petition, the allegations being similar, except as to the nature and extent of injury, and amount sought to be recovered. Each petition alleged the payment and acceptance of fares, and charged that the taxi was operated in a grossly negligent manner; at a rapid and careless rate of speed; without regard to the traffic laws, causing the taxi to wreck, resulting in their several injuries.

The proceedings below were somewhat different from the usual course in such cases. Appellant's insurer tendered a petition to be made party, setting out the conditions of its insurance contract, alleging that it had presented to appellant an answer, setting up bona fide defenses to each of the four actions. The insurer alleged that it had made such investigation of the circumstances attending the accident as authorized defense, and had developed and would rely upon proof sufficient to bulwark the defense, pleading also the insolvency of appellant. Adams refused to sign or verify the answer because it contained, among other defenses, the allegation that on the return trip the occupants of the car were engaged in a common adventure. The court permitted the filing of the petition containing the answer, which an order shows was "to be treated as the answer of Sam Adams and on its own behalf." The answer traversing the allegations of the petition, contained the affirmative pleas of "joint enterprise," and contributory negligence. Replies denied the affirmative allegations of the answer. A rejoinder completed the issues.

At the close of the evidence appellant's motion for a directed verdict was overruled. Instructions were given and the jury returned separate verdicts in each case as follows: Gordon Hilton, $1,300; George Newman, $2,500; Milford Croft, $2,000; Emory Willis, $1,800. Plaintiff in each case made motion for a judgment against the insurer, which the court overruled, since the policy was so written that the insurer's liability only accrued sixty days after judgment or affirmance on appeal. Judgments were rendered against Sam and Chester Adams upon each verdict, and appeals granted.

Such of the facts as are related above are not in dispute; however, there is dispute as to what occurred during the latter part of the ball game. As we read the testimony for appellees, there was no whisky carried by the crowd on the entire trip. They say that none of them drank on the trip to Blackey. All, save Newman, say that they had nothing to drink on the entire trip. They are in accord in saying that the driver had nothing to drink. Some of the appellees say they left the ball park shortly before the game was ended because the Jenkins team was so far ahead that the game had lost interest to them; some say that one of the passengers and the taxi driver were desirous of getting back to Jenkins.

Persons in charge of the park gate testify to circumstances which tend to indicate that there had been some consumption of liquor on the trip to Blackey. Caudill, a deputy sheriff, and Miller, a constable, answering a call to the ball park near the close of the game, found Elkins cursing and using bad language, and "Newman and others ganging around them." One officer commanded arrest; Newman defied them and Miller directed Caudill to take him while he looked after Elkins. At this point Newman ran; Miller fired a shot at him and commanded him to stop, which he did. He then took Newman up to where Elkins was, "at the mouth of the lane." About this time a car came up rather rapidly; slowed down near Newman, and he got in and it hurried away. Someone said this was Chester Adams' car.

The officer says he saw no liquor, but the "Elkins boy and the other boys were pretty drunk." Caudill testified substantially as did his fellow officer. On rebuttal appellees all testified that none of them were drunk, and that Adams was sober. They did not testify as to the state of sobriety or insobriety of Elkins. Dr. Bach, who gave the entire party first aid, said that when he saw them at the hospital "some of them were rather boisterous, but I can't recall which of the number that was. *** I was under the impression they had been drinking."

As to the departure from the ball park, Newman says he saw no disturbance; they had decided to leave and had so told Chester, who then drove out of the ball park. Some of the boys had already gotten in the car, and "down near the entrance," while the car was standing still, Newman got in. Croft says he saw no trouble; that they left to get in front of the crowd. "I got in the car and we pulled off to the other side of the ball park, and Willis got in and Hilton got in a little further, and a little further Newman got in, *** while the car was at a standstill." Willis says he saw Croft and Chester get in the car; that the car backed up and started out, and "I walked out down the road and got in. We went outside and picked up Hilton." Newman then went farther up the road and was the last to get in.

As to what happened after the start of the taxi toward Jenkins, appellees testified that at some point in the road, not exactly identified, but before reaching the place of the accident, Chester had been driving at a moderate rate of speed, but nearing the point of the accident he increased his speed to between 50 or 60 miles per hour. Some of the passengers warned him to slow down or he would kill them all, to which he responded that it would be a long time before he caused any of them to be hurt. It is shown that most, if not all, of them, had ridden as passengers with Chester prior to this trip, and considered him a safe driver.

Newman does not testify clearly as to where the alleged excessive speed began. Croft says the speed was increased to 53 or 54 miles "about 300 yards from the point of the accident." Hilton says that just before the accident he heard one of the boys ask Chester to slow down; that two boys, who were standing beside a motorcycle, flagged the taxi down, and one of the boys borrowed some sort of tool to make repairs; "I told them we told Chester to slow down or he would kill us, and they told Chester to slow down, and Chester said, 'I have been driving a car for a good long time, and I will take care of these boys."' This witness says Chester had been making from 25 to 30 miles over the rough road and when he got to the hard surface road he commenced to pick up speed. From the facts as detailed we are unable to learn just how far the taxi was from the...