Bryan v. Pommert

• Decision Date: 05 December 1941
• Docket Number: 16668.
• Citation: 37 N.E.2d 720,110 Ind.App. 61
• Parties: BRYAN v. POMMERT et al.
• Court: Indiana Appellate Court

37 N.E.2d 720

110 Ind.App. 61

BRYAN v. POMMERT et al.

No. 16668.

Appellate Court of Indiana, in Banc.

December 5, 1941

Wood & Wood, of Angola, for appellant.

W D. Stump, of Auburn, for appellee.

STEVENSON Judge.

The appellee, Nevin L. Pommert, brought this action against the appellant, Wiley Bryan, and the appellee, Ida Mae Bryan, his wife, to recover damages for injuries growing out of an automobile collision.

The complaint was in one paragraph and alleged generally that on the 21st day of February, 1938, the plaintiff was riding in an automobile over and along State Highway No. 27, and traveling from Waterloo to Auburn. The complaint alleges that the pavement was slippery with ice, and that at a spot about one mile north of the city of Auburn, the said Ida Mae Bryan was carelessly and negligently driving an automobile owned by her husband, Wiley Bryan, at an excessive rate of speed, and while so driving carelessly and negligently turned her said automobile to her left and to the west side of the road and directly in the pathway of the plaintiff, thereby causing said automobiles to collide. The complaint then alleges that "at the time of said collision, the defendant, Ida Mae Bryan, was acting as the agent of the defendant, Wiley Bryan."

The complaint concludes with a description of the injuries which she sustained in this accident, and for which she prayed for damages in the amount of $4,000.

An answer in general denial closed the issues, and the case was submitted to a jury for trial. The jury returned a verdict against both husband and wife in the sum of $800. Judgment was rendered upon this verdict. A motion for new trial was filed and overruled, and this appeal has been perfected. The only error assigned in this court is the alleged error in overruling the appellant's motion for a new trial. Under this assignment of error, the appellant, Wiley Bryan, first contends that the verdict of the jury is not sustained by sufficient evidence, for the reason that there is no evidence in the record to establish the relation of agency existing between the appellant and the appellee, Ida Mae Bryan, at the time of the alleged injury.

On this phase of the case, the evidence discloses that at the time of the collision the appellee, Ida Mae Bryan, was driving her husband's automobile, accompanied by her daughter, Katie Lou Bryan, then a senior in high school. They had been to the city of Fort Wayne for the purpose of purchasing some clothing for the daughter. The husband knew of the proposed trip and the proposed purchase of the daughter's clothing, and had consented thereto. The appellant owned a store and restaurant at Crooked Lake in Steuben County, and while in Fort Wayne, the appellee, Ida Mae Bryan, without any instruction from the appellant, and without his knowledge and consent purchased some St. Patrick's Day decorations for use in the store at Crooked Lake. This merchandise was being transported from Fort Wayne to the Crooked Lake store at the time the accident occurred. After the collision, the appellant took charge of this merchandise and used it in the operation of his store for the purposes for which it was purchased.

It is contended by the appellant that these facts are wholly insufficient to establish the relationship of principal and agent between the appellant and the appellee, Ida Mae Bryan. The appellant, therefore, contends that the verdict of the jury is not sustained by sufficient evidence and is contrary to law.

It may be noted in the beginning that the common law liability of a husband for torts of his wife has been changed by statute in this state, and married women are now liable for torts committed by them, the same as if they were unmarried. § 38-105, Burns' Indiana Statutes 1933, Sec. 5647 Baldwin's Ind.Statute 1934.

The negligence of the appellee, Ida Mae Bryan, is not controverted, and there is no contention that her act was committed under the direction of or in the presence of her husband, the appellant. Any liability of the appellant for the negligent acts of his wife must, therefore, rest upon the relationship of principal and agent or master and servant. The complaint in this case charges that the appellee, Ida Mae Bryan, was the agent of the appellant at the time of the injury. For the purpose of this case, we shall attempt to draw no distinction between the relationship of principal and agent or master and servant, so far as liability for torts is concerned. We think the distinction immaterial.

"There is no basic or fundamental distinction to be drawn between the liability of a principal for the tortious act of his agent and the liability of a master for the tortious act of his servant. In both cases, the liability is grounded upon the maxim of respondeat superior, and in both cases the liability, exclusive of that which results from ratification, is to be determined by considering, from a factual standpoint, the question as to whether or not the tortious act was done while the agent or servant was acting within the scope of his employment. A distinction based upon the difference in control has been suggested, but the distinction has not been maintained by the courts of this country, which have taken agents and servants to be coextensive categories as far as the question of their control by the employer is concerned. * * *" 2 Am.Jur § 359.

In the light of these rules, it is necessary for us to determine whether or not the appellee, Ida Mae Bryan, was, at the time of the collision, actually in the employment or service of the appellant as an agent or servant. As was said by this court in the case of Radke v. Schlundt, 1902, 30 Ind.App. 213, at page 223, 65 N.E. 770, at page 773, in which the husband was sought to be charged with the responsibility for torts committed by his wife: "For the purpose of charging the defendant, as a master, with injury of the plaintiff through negligent use of the defendant's property by a third person, it is not enough that such third person was at the time in possession of the property with the assent of the defendant; but he must have been in the employment or service of the defendant, and under his control therein."

In this case, above cited, the wife had taken the husband's horse and buggy and was driving it to town, making deliveries of butter, eggs, and other products of the farm. In so driving she negligently injured another. The court held that in performing such service, she was not engaged in the employment or service of her husband. In discussing this relationship, the court concluded as follows at page 224...