Bowen v. Gradison Const. Co.
| Decision Date | 08 May 1928 |
| Citation | 6 S.W.2d 481,224 Ky. 427 |
| Parties | BOWEN v. GRADISON CONST. CO. et al. OWINGS' Adm'r v. SAME. SOUTH v. SAME. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Montgomery County.
Actions by Bettie Bowen, Macie South, and Laura Owings' administrator against the Gradison Construction Company and another, tried together. From a judgment for defendants in each case, plaintiffs appeal. Affirmed in part, and reversed in part, and remanded.
Marcus C. Redwine, of Winchester, W. O. Chenault, Sr., and Henry Watson, both of Mt. Sterling, and Fowler, Wallace & Fowler of Lexington, for appellants.
Robert H. Winn and W. B. White, both of Mt. Sterling, for appellees.
While driving a loaded truck upon the public highway near the town of Mt. Sterling, Owen Richards ran upon and injured Bettie Bowen, Macie South, and Laura Owings. The first two were seriously injured, and Laura Owings died as a result of her injuries. The administrator of Laura Owings' estate instituted suit to recover for her death, and Bettie Bowen and Macie South instituted separate actions against the Gradison Construction Company and James W. Richards jointly to recover damages for their injuries so received. The petition in each case alleged that the Gradison Construction Company was engaged in the construction of Van Antwerp avenue, in the city of Mt. Sterling, under a contract duly made with the city for that purpose; that in so doing sand cement, and other building material were transported in the truck in question for that company's use; and "that said Gradison Construction Company requested, directed supervised, and controlled the hauling of said paving material by said James W. Richards and Owen Richards from a point near Ewington to said avenue where it was constructing and paving said street." There is no allegation as to the ownership of the truck or that James W. Richards had any interest in the business. Both defendants traversed the allegations of the petition, and the Gradison Construction Company also pleaded affirmatively that James W. Richards was engaged in independent hauling and livery business in the city of Mt. Sterling and had an independent contract with it (defendant) to haul paving material used in the construction of the street, and that it had no control over such hauling and no control whatever over the truck which caused the injuries. The affirmative allegations of the answer were controverted by reply. Owen Richards was not sued. The cases were tried and heard together, and at the conclusion of plaintiffs' evidence, upon a directed verdict, judgment was entered for the defendant in each case. The plaintiffs appeal.
The evidence conduces to show that the Gradison Construction Company had a contract for the construction of certain streets in Mt. Sterling, including Van Antwerp avenue; that it obtained its materials at Ewington, about two miles distant. Several trucks were engaged in its transportation, some of which were owned by the Gradison Construction Company, some by Chris Shawhan, its foreman, and one by James W. Richards. On the day in question the Richards truck was driven by Owen Richards. This truck held about six tons; it was loaded at Ewington with sand, cement, and ballast by Gradison's employees and out of his bins. It was driven to the place where the work was in progress by Owen Richards; the pegs were there removed by Gradison's men and the material unloaded by Richards; Gradison's foreman, Shawhan, being in general supervision over the work. On one of these trips this truck collided with the plaintiffs in these actions, injuring two of them and killing a third, there being some evidence of negligence on the driver's part. No evidence was introduced as to Owen Richards' employment or as to any contractual relation existing between the Gradison Construction Company and James W. Richards.
The trial court seems to have been of the opinion that, in order to hold either of the defendants liable for the negligence of Owen Richards on the doctrine of respondeat superior, it was essential for plaintiffs to show (1) that Owen Richards was employed by such defendant, and (2) that he was engaged in the scope of his employment at the time of the injury; that...
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