B.A. Kipp Co. v. Waldon, 17607.

• Decision Date: 04 December 1947
• Docket Number: No. 17607.,17607.
• Citation: 75 N.E.2d 675,117 Ind.App. 694
• Parties: B. A. KIPP CO. v. WALDON.
• Court: Indiana Appellate Court

117 Ind.App. 694

75 N.E.2d 675

B. A. KIPP CO.

v.WALDON.

No. 17607.

Appellate Court of Indiana, in Banc.

Dec. 4, 1947.

Appeal from Dearborn Circuit Court; Morris W. McManaman, Judge.

Action by Lonnie Waldon against the B. A. Kipp Company to recover for personal injuries and property damage sustained in an automobile accident.Judgment for the plaintiff, and the defendant appeals.

Judgment reversed and cause remanded with instructions.Hartell F. Densmure, of Aurora, for appellant.

Charles A. Lowe, of Lawrenceburg, and Crawford A. Peters, of Aurora, for appellee.

DRAPER, Chief Judge.

The appellee brought this action against the appellant to recover for personal injuries and property damage sustained by him as the result of an automobile accident.

He alleged that appellant, by its agent, servant and employee, was operating and driving a truck loaded with lumber from Cincinnati, Ohio, to Aurora, Indiana; that near Lawrenceburg, Indiana, the appellant left the truck on the highway in the darkness of night without lights; and without putting out flares or otherwise warning other traffic; and as a result thereof the appellee collided with said truck and was injured and damaged.

Following a verdict for appellee, appellant filed its motion for new trial which asserted, among other things, the insufficiency of the evidence and the illegality of the verdict.The motion was overruled and this appeal followed.

We have carefully examined the evidence, and we are unable to find any that would either establish, or support an inference that the truck was owned or operated by the appellant or any of its agents, servants or employees.On the contrary, the evidence adduced by both sides establishes the fact that the truck was owned by Guthrie Express, an independent contractor engaged by the appellant to haul the lumber, and was operated and driven by the independent contractor's servant.

The evidence discloses that Guthrie Express had its office in Cincinnati, Ohio, where the contract between it and the appellant was made.It had neither a common carrier nor a contract carrier permit for the state of Indiana, and the appellee reasons that since it was neither an authorized contract carrier nor common carrier, it must have been acting as the agent of appellant and not as an independent contractor; but we do not think that necessarily follows.Guthrie Express was clearly an independent contractor operating in Indiana without lawful authority.

The appellee also seeks to support the verdict on the ground that, even though Guthrie Express was an independent contractor, the ‘employer is liable for the misconduct of the...