Barr v. Searcy

• Citation: 280 Ky. 535
• Parties: Barr v. Searcy.
• Decision Date: 24 October 1939
• Court: United States State Supreme Court — District of Kentucky

280 Ky. 535

Barr v. Searcy.

Court of Appeals of Kentucky.

October 24, 1939.

1. Automobiles. — In action for damages to truck because of collision with defendant's automobile driven by his minor daughter, evidence held sufficient to take to jury questions whether defendant maintain automobile for his family's use and pleasure and whether it was being so used at time of accident.

2. Automobiles. — One impliedly consenting to, or tacitly acquiescing in, his minor daughter's use of his automobile, is liable for damages caused by negligent operation thereof while in her possession and under her control.

3. Damages. — An insurance company's payment of insured's claim for amount of damages to insured truck because of collision with automobile and insured's assignment of claim to company did not bar recovery of damages from automobile owner by insured.

4. Automobiles. — It was duty of one driving automobile on road of lower type, much narrower, and less traveled, than intersecting highway, constituting main artery of travel between two large cities, to stop before entering intersection, at which stop sign had been placed (Ky. Stats., sec. 2739g-37).

5. Damages. — In action for damages to and loss of use of truck because of collision with defendant's automobile, evidence held sufficient to authorize instruction to award plaintiff reasonable value of use of truck for time she was unable to supply its use as direct result of collision.

6. Trial. — In action for damages to truck because of collision with defendant's automobile at highway intersection, failure of instruction defining truck driver's duties to include his duty to sound horn as warning of truck's approach to intersection was not error, where plaintiff's evidence tended to show that automobile driver, without stopping at intersection, drove onto intersecting highway immediately in path of truck so suddenly that truck driver had

only time to swerve to right and automobile driver testified that she saw truck approaching from right about half a block away when she drove onto such highway, so that sounding of truck's horn could have served no useful purpose (Ky. Stats., sec. 2739g-28).

Appeal from Trimble Circuit Court.

D.E. Woolridge for appellant.

J. Ballard Clark and H.H. Roth for appellee.

Before Chas. C. Marshall, Judge.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

On September 16, 1936, an automobile owned by appellant, W.L. Barr, and driven by his infant daughter, Bernice Barr, collided with a truck owned by Mrs. Lillian B. Searcy. The collision occurred in the town of Bedford in Trimble County at the intersection of U.S. Highway 42 and Kentucky Highway 37. The truck was traveling west on highway 42, and the Barr automobile, traveling north, entered the intersection from highway 37. The truck swerved to the right, ran into a concrete wall on the north side of highway 42, and was practically demolished. Mrs. Searcy brought this action against Barr, predicating his liability on the family purpose doctrine, to recover $1,390.39 damages to the truck and $300 for loss of its use. According to the preponderance of the proof, the collision occurred at a point to the right of the center of highway 42 in the direction in which the truck was traveling. Miss Barr, the driver of the automobile, admitted that she did not stop before entering the intersection, and that she did not know she was approaching highway 42. Buildings are located on each side of highway 37 at the intersection, and an automobile approaching the intersection from highway 37 cannot be seen by travelers on highway 42. The proof shows there was a stop sign at this point on highway 37. On the trial of the case the plaintiff recovered a judgment for $470 for the damages to the truck and $80 for loss of the use of the truck, and the defendant has appealed. The appellant's principal contention is that the family purpose doctrine does not apply to the facts of this case.

Appellant is a merchant and lives in LaGrange, Kentucky. He purchased the automobile in question in 1933, and had the license issued in his name. It was so licensed each year thereafter, and he paid the license fee and the ad valorem taxes. The cost of repairs on the automobile and the operating expenses were paid out of the store account in which it appears all members of his family had an interest. At the time the automobile was purchased, appellant's family consisted of himself, his wife, James Barr, an adult son, Mildred Barr, an adult daughter, and Bernice Barr, an infant daughter, all of whom lived at appellant's home. James Barr married in 1935, and therafter lived in his own home in LaGrange. James Barr worked at his father's store and, after his marriage, kept the automobile at his home and used it daily in going to and from the store. Appellant was unable to drive his automobile, but Mildred Barr drove it frequently and it was driven occasionally by Bernice Barr, though she was an inexperienced driver. On pleasure trips it was usually driven by James Barr, and he was sometimes accompanied by his father, mother and sisters. On the day of the accident James Barr had driven the automobile to the store and parked it on the side of the street. Bernice Barr, who was 17 years of age, testified that she took it without obtaining anyone's permission, and accompanied by another young woman, drove to Campbellsville and then to Bed ford where the accident happened. The appellee Lillian B. Searcy, testified that, accompanied by her attorney, she went to appellant's place of business soon after the accident and had a conversation with him in which he said that he had no insurance and that he had let his daughter have his car, but would never let her have it again. Mr. H.H. Roth, the attorney who was preesnt, testified as follows:

"Mr. Barr seemed quite excited, said that he didn't have any insurance on his car, and didn't know how he was going to pay the damage to the truck, that he let his daughter have it that time, but she certainly never would get it again."

There was ample proof to take the case to the jury on the issue as to whether or not appellant maintained the automobile for the use and pleasure of the family and whether or not it was being so used at the time of the accident. Euster v. Vogel, 227 Ky. 735, 13 S.W. (2d) 1028. If Bernice Barr had charge of the car at the time of the accident with the implied consent or tacit acquiescence of her father, then he would be liable for any negligence in its operation when in her possession and while under her control. Wells v. Lockhart, 258 Ky. 698, 81 S.W. (2d) 5.

In paragraph 4 of his answer, counterclaim, and cross-petition the defendant alleged that the plaintiff's truck was insured against collision and accident with some insurance company, the name of which was unknown to him, and that after the accident the plaintiff made claim against...