Bates Motor Transport Lines v. Mayer
| Decision Date | 08 April 1938 |
| Docket Number | 27017. |
| Citation | 14 N.E.2d 91,213 Ind. 664 |
| Parties | BATES MOTOR TRANSPORT LINES, Inc., v. MAYER. |
| Court | Indiana Supreme Court |
Appeal from Jackson Circuit Court; John C. Branaman, Judge.
Thos. H. Branaman, of Brownstown, and John M Lewis, of Seymour, for appellant.
Lou A. Robertson, of Indianapolis, and Noble Hays, of Scottsburg for appellee.
This was an action filed by the appellee against the appellant corporation, together with several named individuals, as defendants, to recover damages for the wrongful death of appellee's decedent. Five paragraphs of complaint were filed. All were dismissed except the fourth. The issue was formed by an answer in general denial and an affirmative answer, which alleged facts intended to show that Martin H Glade, one of the defendants who operated the truck at the time the injuries were sustained by appellee's decedent, was an independent contractor and wholly responsible for damages. Reply in general denial was filed to the affirmative answer. Before the case was finally submitted to the jury, it was dismissed as to all the individual defendants. The appellant remained as the sole defendant.
It is alleged in the complaint that the defendants were the joint owners of a line of motortrucks, trailers, and semitrailers, and engaged in transporting goods for hire as a common carrier upon certain highways in the State of Indiana, one of which was United States and Indiana State Highway No. 31, over which they transported interstate shipments from Chicago, Ill., to Louisville, Ky.; that on August 12, 1932, the defendants operated a tractor together with a large steel semitrailer of the Reo refrigerator type; that printed on the trailer were the words 'Bates Motor Transport Lines, Inc., P. S. C. I.--1480--M'; that this truck was used by the defendants through their agents, servants, and employees on said date in the transportation of a consignment of baseball bats from Louisville, Ky., to Chicago, Ill., and was traveling northward on said road No. 31 about 1 1/2 miles south of Scottsburg in Scott county, Ind., upon that side of said highway which was to the left of the operator, and west of the center traffic line, clearly visible by day or night; that, at the same time and place, appellee's decedent, together with his wife, son, and daughter, was traveling south in a Chevrolet coupé driven by decedent in a careful and prudent manner on the west side of said highway; that the servants and agents of the defendants carelessly and negligently operated said truck, as aforesaid, at the rate of 50 miles per hour, and drove the same upon and against said decedent and his family, whereby all were killed except the son, Charles Ross, the sole surviving dependent of the decedent Hugh S. Ross.
The cause was submitted to the jury for a trial, and a verdict was returned in plaintiff's favor in the sum of $6,000, upon which judgment was rendered. A motion for a new trial was filed and overruled. Proper exceptions were taken to the rulings of the court, and this appeal was perfected. The appellant assigned as error the ruling of the court in permitting the witness Martin H. Glade, testifying in behalf of the plaintiff, in a deposition taken in Chicago, Ill., and not cross-examined by appellant, to answer the following question on direct examination:
The objection was based upon the ground that the answer of the witness was a mere conclusion; that it was improper to permit him to state that he was 'employed.' Appellant relies in this court upon Vincennes Water-Supply Co. v. White, 1890, 124 Ind. 376, 24 N.E. 747; Wright v. Bertiaux, 1903, 161 Ind. 124, 66 N.E. 900; Blair-Baker Horse Co. v. First National Bank, 1905, 164 Ind. 77, 72 N.E. 1027; Dietrich v. Smith, 1931, 93 Ind.App. 219, 176 N.E. 636, 177 N.E. 901.
Both the appellant and the appellee introduced evidence to show the relationship existing between Glade and appellant. Glade testified, in connection with his statement: That he was employed by appellant; that he owned the truck subject to the rights of a mortgagee; that he did not hold a permit from the Public Service Commission of Indiana to operate the truck as a common carrier in interstate transportation; that such permit was held by the appellant; that its name was painted upon the side of the trailer, together with the following: 'P. S. C. I.--1480-M,' which the evidence disclosed meant Public Service Commission of Indiana, and the figures were a license number issued to appellant; that the lettering on the trailer was done in appellant's garage in Chicago without the knowledge of Glade.
The evidence further disclosed that the appellant was incorporated a few months before the accident described in the complaint. Prior to that time the transportation company had been operated by George F. Bates, as the sole owner. He applied to the Public Service Commission of Indiana for a certificate of convenience and necessity, and authority to operate as a common carrier of interstate shipments on certain highways in this state, including road No. 31, which permit was granted to him, and, upon his request, the application was amended or changed so as to grant the privilege to the appellant corporation. The evidence further disclosed that the appellant maintained a station in Chicago, and substations in Indianapolis, Ind., and Louisville, Ky.; that all trucks were operated upon a schedule; that bills of lading were issued; that the freight charges were sometimes paid directly to the driver of the truck, and at other times to the home office in Chicago. In some instances the freight was delivered at the station or substations, and at other times to the consignee. Glade conveyed the goods as directed by appellant upon a designated highway, had no authority to transport goods not disignated by appellant, operated upon the schedule fixed by it, and, as compensation for his services, received 70 per cent. and the appellant 30 per cent. of the freight charges. The appellant's officials testified that appellant owned no trucks, but operated by employing persons owning trucks to transport appellant's freight. It is in evidence that the truck drivers, including Glade, received directions from the officers or employees in charge of the station and substations. They carried no freight except interstate shipments.
It was not held in any of the cases relied upon by the appellant that the answer that he was 'employed' constituted a reversible error under circumstances and facts existing as in the case at bar. Here the relationship between Glade and the appellant was fully explained. There is no reason to believe that the jury could have been misled by the question and answer.
What has been said upon overruling the objection to the question applies with equal force to overruling the motion of appellant to strike out the answer.
It is the contention of the appellant that the verdict of the jury is contrary to law and is not sustained by sufficient evidence. The first proposition discussed is that there is no evidence of negligence. This was a question for the jury. There is evidence in the record to support the allegations of the complaint that the truck was being driven on the side of the road to the left of the center line. Marks on the highway indicated that the truck was about 2 1/2 feet west of the center line. Witnesses testified to the damages done to both the tracter and the car operated by plaintiff's decedent. The positions of the cars after the wreck were described by witnesses. The only survivor of decedent's coupé was his son, Charles, 16 years of age who was riding in the luggage compartment, at the time of the accident. His position was such that he could not see to the front, but did see and look to the east and rear of the car. He testified that his father was driving to the west of the black line, and to the right of the center, and did not pass any one for a distance of 5 miles before the accident. He said it was a clear warm...
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