Buddenberg v. Morgan
| Decision Date | 23 December 1941 |
| Docket Number | 16466. |
| Citation | 38 N.E.2d 287,110 Ind.App. 609 |
| Parties | BUDDENBERG v. MORGAN. |
| Court | Indiana Appellate Court |
[Copyrighted Material Omitted]
Charles Lowe, of Lawrenceburg, V. J. McCarty, of Brookville, August Rendigs, Jr., of Cincinnati, Ohio, and Fenton, Steers Beasley & Klee, of Indianapolis, for appellant.
E G. Bielby, of Lawrenceburg, John W. Hudson and Taft, Stettinius & Hollister, all of Cincinnati, Ohio (Orville W. Hubbard, of Brookville, of counsel), for appellee.
On the 17th day of December, 1934, Marian Wilson Morgan, with her two daughters, Mary D. Morgan, aged eighteen years, who was driving the car, and another daughter of very tender years, was returning from the state of New York to her home in Denver. They were traveling in an Oldsmobile, and while traveling westwardly on Federal Highway No. 50, near the town of Dillsboro, Indiana, the appellant, through his agent, servant and employee, was operating a Gulf gasoline truck over said highway in an eastwardly direction. A collision occurred between these vehicles and as a result thereof all of the occupants of both vehicles were killed instantly or died within a few hours from the time of the accident except the small daughter of Mrs. Morgan. There were no eyewitnesses to this collision and terrible tragedy.
Subsequently the appellee as executor of the estate of Marian Wilson Morgan, deceased, brought this action to recover damages for the wrongful death of Marian Wilson Morgan, who left surviving her her husband, Harry L. Morgan, Elizabeth Morgan, a daughter 16 years of age, a daughter, Nancy Morgan, 14 years of age and her daughter, Alice Morgan, 5 years of age. The complaint was in one paragraph. A motion was directed to this complaint to strike out certain parts thereof, which was overruled, and this ruling of the court is made a separate assignment of error in this appeal. The issues were closed by the filing of a general denial on the behalf of appellant and the case was tried to a jury. A verdict resulted in favor of the plaintiff in the amount of $7,000. A motion for new trial was filed which was overruled and this ruling of the court constitutes the second and remaining assignment of error. The specifications set forth in the motion for new trial are:
1. Error of the court in sustaining a challenge for cause to a prospective juror.
2. The verdict of the jury is not sustained by sufficient evidence.
3. The verdict of the jury is contrary to law.
4. Errors of law occurring at the trial and duly excepted to by the defendant, involving rulings upon the admissibility of evidence, motions to strike out, exceptions to instructions given and refused and the ruling of the court upon motions, both at the close of plaintiff's evidence and at the close of all of the evidence, for a peremptory instruction directing the jury to return a verdict for the defendant. The specific allegations of negligence charged in the complaint are that the appellant's servant and agent was operating a truck at the time of the collision at a reckless and dangerous rate of speed, towit: sixty miles per hour, and at the time of said accident was operating said truck upon his left-hand side of said U. S. Highway No. 50; also that he carelessly and negligently ran said truck into the automobile occupied by appellee's decedent and her two daughters.
The complaint is not attacked except for the motion to strike out parts thereof. The complaint alleged that defendant, "is the owner and proprietor of a Gulf Bulk oil station" said in connection with said business, "he did, on the 17th day of December, 1934, own, control and operate several oil trucks in connection with his said business." A further allegation of the complaint charges that the servant and agent of the appellant was then and there operating and driving said International truck upon said U. S. Highway No. 50 at a high and dangerous rate of speed, "while in an intoxicated condition" and upon a highway that was much used for traffic, "and that he was in such an intoxicated condition that he was unable to control said truck and to operate the same with due regard for the safety of others using said public highway." The complaint also charged as follows: That said John Buddenberg had been in the employ of his brother, Fred Buddenberg, for several years prior to the 17th day of December, 1934, and "that said defendant, Fred Buddenberg, knew that his brother, John Buddenberg, who was driving his truck for him, as his agent, servant and employee, was in the habit of becoming intoxicated, and was not safe to be permitted to operate motor vehicle upon the public highways of the State of Indiana, but notwithstanding, he did permit his brother to operate said International truck on December 17, 1934, while in an intoxicated condition, and by reason of the carelessness and negligence of the said Fred Buddenberg in employing his brother, John Buddenberg, who he well knew was an habitual drunkard and not a proper person to hire as a driver of trucks on the public highway," and by reason of the carelessness and negligence of the servant and employee of said defendant, as herein alleged, Marian Wilson Morgan was killed in said collision, which said collision and the death of Marian Wilson Morgan was not caused by any act of the decedent contributing thereto.
A motion to strike out was addressed separately and severally to such parts of the above allegations as are enclosed within the quotation marks. It is argued that all of the allegations which appellant seeks to eliminate from the complaint are unnecessary and prejudicial to appellant. The allegations concerning the character of appellant's business and the number of trucks operated by him may not be essential to the cause of action but no showing is made, nor can we perceive in what manner these charges could have been in anywise prejudicial to appellant. The record discloses that there was some conflict in the evidence as to the color of the truck driven by appellant's agent; some witnesses describing it to be of orange color and others describing it as a red truck. Under these circumstances it would have been competent to show the number of trucks operated by appellant in order to identify the truck involved in the accident as one belonging to appellant. Vigorous assault is made upon the allegations which charged that the servant of the appellant was operating the truck "while in an intoxicated condition" upon a highway that was much used by traffic, and "that he was in such an intoxicated condition that he was unable to control said truck and to operate the same with due regard for the safety of others using said public highway." These allegations of the complaint charged not only intoxication, but also the degree or extent of intoxication affecting the servant at the time he was operating the truck. In our opinion these were proper allegations of fact. It is a violation of law in this state to operate a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor. Section 47-517, Burns' 1933, Laws 1927, c. 191. To operate an automobile in violation of a statute is negligence, and such negligence is actionable if it proximately results in injuries to life or property. It is appellant's contention that intoxication alone does not constitute actionable negligence. With this statement we are in accord, but when intoxication of the driver coupled with the operation of a motor vehicle is established, wrongful conduct is shown. The appellant admits that without these allegations with respect to intoxication, evidence of intoxication of the driver was competent. This being true, no prejudice resulted to appellant on the court's refusal to strike these allegations from the complaint.
The remaining allegations sought to be stricken from the complaint are those which disclose an attempt upon the part of the pleader to charge appellant with the employment of an incompetent person, whom he knew to be incompetent, to operate a motor vehicle upon the highway. It appears from the evidence that the masterservant relationship between the appellant and the driver of the truck was admitted and no evidence was offered on this theory of the complaint and no instruction was given authorizing the jury to render a verdict on such theory. The main contention of appellant on his motion to strike out with respect to this part of the complaint is that the court read the entire complaint as a part of his instruction defining the issues; that the jury was permitted to take the pleadings to the jury room, and that therefore this part of the complaint was highly prejudicial to appellant. The court in his instruction was careful to guard appellant's rights in charging the jury with plaintiff's burden of proof to establish the material allegations of his complaint by a fair preponderance of all of the evidence, and in admonishing the jury that the pleadings which they were permitted to take to the jury room were not evidence or any proof of the facts therein alleged. If the appellant felt that he would be aggrieved and his rights prejudiced by the court's reading to the jury that part of the complaint which was unsupported by any evidence the proper procedure would require appellant to request the court by appropriate action to withdraw that issue from the consideration of the jury. The court was not in a position to know what the evidence would be before the trial and we cannot presume that he would have refused to withdraw from the consideration of the jury an issue upon which there was no evidence. In addition to what we have heretofore said in regard to the motion to strike out parts of the complaint, it is to be noted that there is a...
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