Bradford v. Chism

• Decision Date: 17 January 1963
• Docket Number: No. 19549,No. 2,19549,2
• Citation: 1 Ind.Dec. 21,186 N.E.2d 432,134 Ind. App. 501
• Parties: Helen BRADFORD, Appellant, v. Edward L. CHISM, Appellee
• Court: Indiana Appellate Court

Page 432

186 N.E.2d 432

134 Ind.App. 501

Helen BRADFORD, Appellant, v.Edward L. CHISM, Appellee.

No. 19549.

Appellate Court of Indiana, Division No. 2.

Jan. 17, 1963.

Rehearing Denied Feb. 20, 1963.

Allen & Allen, South Bend, for appellant.

Richard C. Kaczmarek, South Bend, for appellee.

HUNTER, Judge.

Helen Bradford, appellant, brought this civil action in the St. Joseph Superior CourtNo. 1 against Edward L. Chism, appellee, for damages for personal injuries sustained as a result of a collision wherein an automobile in which she was riding and operated by her husband, and an automobile operated by Jack Johnson, alleged servant of the appellee, were involved.

Said complaint was based upon alleged negligence of agents and servants of appellee.Issues were formed by appellant's complaint and appellee's answer thereto.

Trial was had by jury.At the conclusion of appellant's evidence, appellee moved the court for a directed verdict, which the court sustained, and thence instructed the jury to return a verdict in favor of defendant-appellee.The jury found for the defendant and the court rendered consistent judgment.Upon the overruling by the court of a motion for a new trial this appeal followed.

Appellant, in her assignment of errors, avers that 'The court erred in overruling the appellant's motion for a new trial.'

In her specifications embraced in her motion for a new trial, appellant charges: (1) Error of law occurring at the trial in that the court erred in sustaining the defendant's motion for a directed verdict at the close of evidence by plaintiff and thence erred in peremptorily instructing that a verdict for the defendant be returned by the jury and (2) That the decision of the court is contrary to law.

Reasons advanced in defendant's motion for a directed verdict were:

'(1) The evidence fails to show the existence of any duty on the part of the defendant within the issues tendered by the complaint, a violation of which was the proximate cause of plaintiff's injury.

'(2) The evidence fails to show any negligence on the part of the defendant within the issues tendered by the complaint.

'(3) The evidence fails to show that the defendant had agents and servants as alleged in the complaint.'

The court apparently accepted defendant's charge that there was no legal relationship existing at the time of the accident of a master-servant arrangement between appellee and Jack Johnson, whereby, the action of Jack Johnson would confer liability upon the appellee for damages sustained in the collision involving appellant and the said Johnson.

While the courts in this state have a duty and responsibility to protect citizens from actions destitute of a foundation in law, we must concern ourselves with a constitutional provision of Indiana as set forth in Article 1, Section 20 thereof, to-wit:

'In all civil cases, the right of trial by jury shall remain inviolate,'

Which places 'a heavy restraining hand upon the courts to deny the submission of a cause brought in good faith and based upon a situation involving far reaching and serious consequences to the plaintiff.'Garr v. Blissmer(1961), 132 Ind.App. 635, 177 N.E.2d 913.

We have from the case of Estes v. Anderson Oil Co.(1931), 93 Ind.App. 365, 176 N.E. 560, this significant sentence relative to the advisability of a directed verdict as follows:

'The law very zealously protects one against whom a motion for a directed verdict is addressed. * * *'

This court has held in many cases that a peremptory instruction for a defendant will be upheld only if one or more of the material allegations of the complaint essential to recovery are not supported by evidence of probative value or by any reasonable inference that may be drawn therefrom.Whitaker, Admr. v. Borntrager(1954), 233 Ind. 678, 122 N.E.2d 734;Huttinger v. G. C. Murphy Company(1961), 131 Ind.App. 642, 172 N.E.2d 74;Morrow, Inc. v. Munson et al.(1958), 129 Ind.App. 113, 150 N.E.2d 256and cases citedat page 120.

There are numerous decisions by the Supreme Court and by this court that the question of respondeat superior is a question of fact and thence should be submitted to a jury for consideration.Department of Treasury v. Ice Service, Inc.(1942), 220 Ind. 64, 41 N.E.2d 201;Mays v. Welsh(1941), 218 Ind. 356, 32 N.E.2d 701; Ross, Receiver, v. Indiana Nat. Gas etc., Co.(1921), 78 Ind.App. 219, 130 N.E. 440, 131 N.E. 794;Jasper County Farms Co. v. Holden(1923), 79 Ind.App. 214, 137 N.E. 618.See also35 Am.Jur., Master and Servant, § 538, p. 966 for cases in foreign jurisdictions.

However, this court has held in other cases that the question of respondeat superior is one of law and hence is for the trial court to decide.Notable among these cases are Modern Woodmen etc. v. Lyons(1920), 76 Ind.App. 641, 128 N.E. 651;Michigan Mutual Life Ins. Co. v. Thompson(1908), 44 Ind.App. 180, 83 N.E. 503;Indiana Insurance Company v. Hartwell(1890), 123 Ind. 177, 24 N.E. 100.

We think the apparent conflict in the cases cited above may be resolved upon a consideration of the nature of the evidence presented by the parties in attempting to establish a master-servant relationship.In those cases in which circumstantial or disputed evidence was presented, the court held that the relationship was a question of fact, whereas, in cases involving a written instrument or other uncontradicted evidence, the court held it to be a question of law.In 56 C.J.S.Master and Servant§ 13, at page 92, the rule is given as follows:

'As in civil actions generally, where the evidence on a material issue in actions involving the relation of master and servant is conflicting or admits of more than one inference, the question thereby raised is one of fact for the determination of the jury; otherwise the question is one of law for the court.'(Seecases cited in Footnotes 12 and 13.)

We are of the opinion that the trial court in the case at bar as a matter of law could legally take the case away from the jury at the close of plaintiff's evidence only, if the plaintiff had failed to submit evidence of probative value from which the jury could have directly found or reasonably and justifiably inferred the existence of a master-servant relationship.

Hence, our duty is to review the evidence most favorable to the appellant to determine whether there was any evidence of probative value to support a reasonable inference by the jury of a master-servant relationship between appellee and the said Jack Johnson.In doing so we must draw against the party requesting a peremptory instruction, all inferences which the jury might reasonably draw.Johnson v. Estate of Gaugh et al.(1955), 125 Ind.App. 510, 124 N.E.2d 704.

In viewing the evidence most favorable to the appellantwe think the jury could have reasonably and justifiably inferred and found the existence of the following facts: that appellee was the owner of a garage and was primarily engaged in the repair of automobiles; that during the interval of...