Corbin Fruit Co. v. Decker

• Decision Date: 13 February 1934
• Citation: 252 Ky. 766,68 S.W.2d 434
• Parties: CORBIN FRUIT CO. v. DECKER. SAME v. EDWARDS.
• Court: Kentucky Court of Appeals

68 S.W.2d 434

252 Ky. 766

CORBIN FRUIT CO. v. DECKER.

SAME v. EDWARDS.

Court of Appeals of Kentucky

February 13, 1934

Appeal from Circuit Court, Knox County.

Actions by A. M. Decker, Sr., and Joe Edwards, by his next friend Mrs. Hattie Edwards, against the Corbin Fruit Company. Judgment for plaintiffs, and defendant appeals from the judgment in favor of plaintiff Joe Edwards and moves for an appeal from the judgment in favor of Decker.

Judgment reversed as to Edwards, and motion for appeal as to Decker sustained, appeal granted, and judgment as to him reversed.

Tye Siler, Gillis & Siler, of Williamsburg, for appellant.

J. B Campbell, of Barbourville, and Golden, Gilbert & Golden, of Pineville, for appellees.

RICHARDSON Justice.

We are required to review a trial of an action for injuries to the occupants of an automobile and damages to the automobile, occurring in a collision of the automobile and a truck on a public highway, which resulted in a judgment of $5,000 in favor of Joe Edwards and $300 in favor of A. M. Decker against the Corbin Fruit Company. An appeal is prosecuted from the judgment in favor of Edwards and a motion for an appeal from the judgment in favor of Decker has been made in this court. The determinate question requires a review of the act of the court in overruling a motion for a peremptory instruction at the conclusion of all of the evidence.

In the afternoon of June 4, 1932, Sawyer Decker invited Joe Edwards and his father, Wilbur Edwards, to accompany him in a Chevrolet sedan belonging to A. M. Decker, Sr., from Corbin to Barbourville, Ky. Sawyer Decker operated the car, Joe Edwards occupying with him the front, and Wilbur Edwards the rear, seat. The Decker car traveled on the right side of the center of the concrete road, "never crossing the black line indicating the center of the road." The concrete surface of the road was 18 feet wide. The Decker car rounded a curve, and on reaching the end of it some 75 feet away, the occupants of the Chevrolet sedan, for the first time, observed a truck of the Corbin Fruit Company, approaching on the highway. The Decker car, at the time, was making "30 to 35 miles an hour," going down a slight grade of about 5 per cent., under control and remaining all the time on the right of the center of the highway, when the truck undertook to run around another Chevrolet car on the highway. In running around it, the truck turned to the left, "directly in the path of the oncoming car, operated by Sawyer Decker." The truck was out to the left across the road, so as to take up all of the portion of the road that was supposed to be occupied by the Decker car, leaving no space whatever for the Decker car to escape the accident, "with the truck drawn directly across the highway in front of the Decker car to such an extent the truck had its front wheels on or near the extreme right edge of the concrete road. There was a rock wall, approximately 10 feet high on the right side of this location, at the scene of the accident, which made it impossible for the Decker car to run off of the road any further to the right to avoid the accident." The truck and the Decker car collided; Joe Edwards was violently thrown into the front of the car, "suffering a very severe concussion of the brain and fracture of the skull, his back was wrenched, his kidneys were seriously injured, and he remained unconscious for eight or ten days, and has been bleeding at the kidneys since said date." The Chevrolet sedan, in which he was traveling, was practically demolished. The injuries sustained by Sawyer Decker and Wilbur Edwards are not here involved. The Corbin Fruit Company was engaged in the wholesale fruit, vegetable, and grocery business at Corbin. N. B. Smith, who was driving the truck, had been working by the day for it for about four years, at the wage of $3 a day. The accident occurred about 3 p. m. on Saturday, June 4, 1932. Smith worked for the Corbin Fruit Company on that day until noon, for which he was paid $1.50 by the Corbin Fruit Company. R. E. Hill, its president and general manager, was not on duty, because of a sprained ankle which confined him at his home. About noon Smith completed his half day's work for the fruit company, and thereafter his time was his own, and without the knowledge or consent of the fruit company or any one acting for it, for the purpose of moving his household goods from Corbin to "Gray's Place," he took possession of the truck, loaded his household goods, and, in company with W. W. Wade and Glynn Kidd, carried them in the truck, traveling the highway, where the accident happened, from Corbin to "Gray's Place," making during the afternoon three round trips. Mrs. George McDonald conducted "a lunch counter in a little store at a filling station," estimated by the witnesses to be from 250 to 400 yards south of where the accident occurred. She testified that Smith brought to her place "potatoes and beans," about 4 or 5 o'clock, after the wreck. She claims she did not remember anything he brought that afternoon to her place except the potatoes and beans. Before he brought them she had observed him passing on the highway in the truck. She had given Smith an order for candy and chewing gum the evening before the accident to be filled at the convenience of the fruit company. Clarence McDonald, on this topic, was asked and answered thus:

"Q. I wish you would state what you know about the Corbin Fruit Company making deliveries to your mother the afternoon the wreck happened. A. Well, they did deliver some things that afternoon.

Q. Tell us what they delivered to your mother that afternoon. A. They delivered some candy and chewing gum,--and that's all I remember--at one time, I am sure.

Q. Do you remember anything else? A. Well, they delivered some beans and potatoes just for family use, that's all.

Q. Who made that delivery, with reference to Smith and the Corbin Fruit Company's truck? A. Well, Smith brought them himself in the truck. ***

Q. Was it on the same trip that he delivered the stuff out there to your mother as he went down? A. I am not sure, I think it was.

Q. Now, this happened about what time of the day? A. Well, about the middle of the afternoon.

Q. Mr. McDonald, do you know where Smith had been on this trip? A. Well, I think he was going to Gray's. ***

Q. How do you know he went to Gray's then? A. That's where he said he was going to.

Q. You don't know where he went? A. Not positive.

Q. Do you know when he come back? A. Yes, sir.

Q. About what time was it when he came back? A. About the middle of the afternoon. ***

Q. Where did you see him? A. He passed home and over in town and he come out to the house there and stopped twice.

Q. After the wreck? A. After the wreck, yes, sir. ***

Q. Was that when he delivered the chewing gum? A. No, sir.

Q. When did he deliver the chewing gum to her? A. He delivered the chewing gum in the afternoon.

Q. What time in the afternoon? A. I don't know what time in the afternoon.

Q. Was that after the wreck? A. I am not sure, I think it was before the wreck.

Q. Well, he didn't stop going out? A. Not at noon, no.

Q. Did he make another trip in the afternoon, going toward Gray's? A. Yes, sir.

Q. Did he stop that trip? A. I think he did.

Q. What did he have in his car? A. I think he had some household goods, if I am not mistaken.

Q. Do you know where he come from with those household goods? A. Over in town--over at Corbin.

Q. Do you know where he went to? A. He said he went to Gray's. ***

Q. Anybody go with him on that trip? A. Well, if I am not mistaken I think Mr. Ward was with him and two of his boys was with him.

Q. And he had some household goods in the car? A. Yes, sir.

Q. Now, what were those articles you say he delivered to your mother that afternoon? A. Some candy and some chewing gum.

Q. What did he have it in? A. In boxes of candy and boxes of chewing gum--boxes.

Q. Do you know where he got that candy and chewing gum? A. He brought it with him out of the truck. ***

Q. But you don't know where he brought it from? A. I don't know positively about it. ***

Q. And you don't know which one of the trips it was he stopped at your mother's house? A. No, sir, I don't."

Jack McDonald was asked and answered as follows:

"Q. When you came in that afternoon, was there any candy that wasn't there before that in your mother's store? A. Yes, sir.

Q. And was there any new chewing gum that wasn't there before? A. Yes.

Q. Were you there when Mr. Smith brought it? A. No, sir."

Edwards and Decker contend that the use of the truck of the Corbin Fruit Company by its employee Smith, on the occasion of the accident, gives rise to the presumption he was engaged in its business and the proof of such alone was sufficient to take the case to the jury and to sustain its verdict. See Wood v. Indianapolis Abattoir Co. of Ky., 178 Ky. 188, 198 S.W. 732; Mullen & Haynes Co. et al. v. Crisp et al., 207 Ky. 31, 268 S.W. 576; Bowen v. Gradison Con. Co. et al., 224 Ky. 427, 6 S.W.2d 481; Dennes v. Jefferson Meat Market, 228 Ky. 164, 14 S.W.2d 408; Ashland Coca Cola Bottling Co. v. Ellison et al., 252 Ky. 172, 66 S.W.2d 52. They rest the right to have the case submitted to the jury upon the presumption arising from proof of the fact the fruit company owned the truck and Smith had been in its employment and operated it on days previous to, and had delivered candy and gum the evening of, the accident. To render, or to hold, the fruit company liable for the injuries sustained and the damages claimed, the relation of principal and agent, or master and servant, between it and Smith at the time and place of the accident, is indispensably necessary. Something more than mere ownership of the...