Bogner v. Kendle

• Decision Date: 21 January 1949
• Citation: 309 Ky. 221
• Parties: Bogner v. Kendle et al. Tiemeyer v. Kendle et al.
• Court: United States State Supreme Court — District of Kentucky

Page 221

309 Ky. 221

Bogner v. Kendle et al.

Tiemeyer v. Kendle et al.

Court of Appeals of Kentucky.

January 21, 1949.

1. Automobiles. — Where plaintiffs made out a prima facie case of agency of person operating taxicab for defendants at time of accident, burden was shifted to defendants of going forward with the evidence to overcome a presumption, and any evidence of substance was sufficient to develop a jury question.

2. Automobiles. — Where testimony of taxicab owner and driver thereof at time of accident was clearly adequate to create an issue of fact of the driver's agency for the owner, question for jury's determination was whether the positive evidence should be given more weight than the inference in favor of plaintiffs, who made out a prima facie case of agency.

3. Principal and Agent. — The burden of establishing agency is on the one asserting its existence, and such burden does not shift.

4. Automobiles. — After plaintiffs' injury in a taxicab accident made out a prima facie case of agency of the driver thereof for the owner of the taxicab, the duty of going forward with the evidence rested on the owner and the driver, and, when they presented evidence thereon, an issue of fact of agency was created, but the ultimate burden of establishing such fact to the satisfaction of the jury always remained on the plaintiffs.

5. Automobiles. — The statute prohibiting the operation of a motor vehicle for hire by an unlicensed driver does not relate to casual operation of a motor vehicle for purposes other than the transportation of persons for hire. KRS 281.300.

6. Automobiles. — Where owners of taxicab had not authorized a mechanic to operate the taxicab for commercial purpose of carrying passengers for which he had no license, nor was he operating it for any purpose at the time of the accident with their knowledge, permission, or consent, owners did not create an unreasonable risk of injury to occupants of another automobile colliding with taxicab so as to be liable therefor. KRS 281.300.

7. Automobiles. — In action for injuries sustained by occupants of automobile colliding with a taxicab against owners thereof, issue of agency of the driver of the taxicab for the owners was properly submitted to the jury where driver was a mechanic operating his own shop and was authorized to use the taxicab then at his shop to transport himself to the owners' office to do some electrical repair work and the accident occurred after the mechanic was told to take the taxicab back to his shop or to return to his home.

Appeal from Campbell Circuit Court.

Barbour & Bassmann for appellants.

Benton, Benton & Luedke for appellees.

Before Ray L. Murphy, Judge.

OPINION OF THE COURT BY CLAY, COMMISSIONER.

Affirming.

At about five o'clock on the morning of January 4, 1945, appellees' taxicab was involved in an accident with an automobile occupied by the two appellants. The latter suffered serious personal injuries. A jury returned a verdict for appellees on the ground the driver of the taxicab "was not the servant, agent, or employee of said defendants at the time and place of the accident." The only issue on this appeal involves the question of agency. Appellants' principal contention is that the verdict was not sustained by sufficient evidence and was contrary to law.

The taxicab was owned by appellees as partners and used in their transportation business. The driver on this occasion was a man by the name of Seibert, a mechanic who operated his own shop and did repair work for appellees. On the evening preceding the accident, one of the appellees requested him by telephone to come down to the taxicab office and do some electrical work. He was authorized to use the taxicab, then at his shop, to transport himself to the office. Seibert came as requested, and worked at the office until about 11:30. The appellee who had called him left at 11:00, and says he told Seibert to take the cab "back to the shop, or return to his home." (The latter was above the shop.)

Seibert did not return to his home after finishing his work at the office, but took the taxi and drove about the...