Davis v. Bennett's Adm'R.
| Decision Date | 03 October 1939 |
| Parties | Davis v. Bennett's Adm'r. |
| Court | United States State Supreme Court — District of Kentucky |
5. Appeal and Error. — In action for death of motorist who was allegedly crowded from highway by approaching automobile, admission of testimony by occupant, that driver told him that automobile belonged to defendant, as res gestae, was prejudicial error in absence of showing by occupant that statement was made spontaneously at about the time accident occurred, particularly where testimony was offered to show not only ownership but to raise presumption that driver was agent of owner and was in course of his employment as agent when accident occurred.
6. Automobiles. — The use of an employer's automobile by an employee creates the presumption that the employee was engaged in the employer's business at time of accident, and presumption places on employer the burden of disproving it.
7. Automobiles. — In action for death of motorist who was allegedly crowded from highway by approaching automobile, finding that defendant was owner of automobile and that it was driven by his agent at time of accident was flagrantly against the weight of the evidence.
8. Trial. — In action for death of motorist who was allegedly crowded from highway by approaching automobile, instruction that recovery should be allowed if jury believed that defendant's automobile at time of accident was operated by his driver in furtherance of his business was not prejudicial as assuming that defendant was owner of automobile causing the accident, particularly in view of fact that defendant offered instructions which he regarded as stating the full law of the case and such instructions as given cured any obscurity in criticized instruction.
9. Appeal and Error. — Where case was tried by jury having before it instructions offered by defendant as expressing the whole law of the case, defendant was not in position on appeal to complain of instructions given by the court.
Appeal from Harlan Circuit Court.
R.W. Keenon and J.C. Baker for appellant.
Charles B. Spicer for appellee.
Before J.S. Forrester, Special Judge.
Reversing.
The administrator of Nolan Bennett filed suit in the Harlan circuit court against the defendant, Garbe Davis, seeking recovery of damages for Bennett's death, alleged caused by the reckless and negligent operation of defendant's automobile or taxicab, when, it was further alleged, it was being driven by his agent and servant, Henry Thomas.
For cause of action, the petition alleged that on the evening of April 7, 1937, the defendant, Garbe Davis (here appellant), was the owner of a 1936 Chevrolet sedan, which he was operating at said time by his driver as a taxicab; that on the evening of the same day, the plaintiff's intestate, Nolan Bennett, was driving his automobile on the public highway in Harlan county between Harlan and Cumberland and was traveling in the direction of Harlan, when at the same time the defendant's car was traveling the same highway in the opposite direction, in going from Harlan to Cumberland; that plaintiff's intestate, Bennett, met the defendant on a down grade curve of said highway, where, by reason of the reckless, careless and negligent way and manner in which defendant's driver was operating his automobile, the car of plaintiff's intestate (Bennett) was forced to leave the highway to avoid a collision between their cars; that, by reason of said reckless and negligent acts on the part of defendant, the car of plaintiff's intestate (Bennett) was wrecked and Bennett killed.
Defendant answered, first traversing the allegations of the petition and further specifically denied that any car driven by this defendant, owned by this defendant, or operated by any agent, servant or employee of this defendant or on business of this defendant, was on the highway at the time or place referred to in plaintiff's petition; denied that any automobile belonging to this defendant or driven by any agent, servant or employee of this defendant or in the course of this defendant's business, was being operated at the time or place referred to in plaintiff's petition or had any connection with the forcing of plaintiff's intestate's automobile from the highway, if it was forced from said highway. Further, he pleaded that if any car of this defendant was on the highway at the time and place referred to, it was not being operated by any agent or employee of this defendant, or in the course of defendant's business.
By the second paragraph of the answer, defendant pleaded contributory negligence on the part of the deceased Bennett.
Proper pleadings made up the issues.
Upon a jury trial of the case had before the Hon. J. S. Forrester, chosen as special judge to try it, a verdict was returned in favor of the plaintiff against the defendant for damages in the sum of $4,000.
Following the rendition of this verdict and judgment entered thereon, the defendant, here appellant, filed motion for a new trial, assigning some fourteen grounds as reasons for the reversal of the judgment.
The motion being overruled, appellant has here appealed, assigning the following six grounds, which he strongly argues and insists are reasons for reversal of the judgment: (1) Error of the court in admitting incompetent evidence, especially the statement of the witness Joe Moton made as to the hearsay statement of defendant's alleged driver, that the car he was driving belonged to the defendant; (2) error of the court in refusing to give a directed verdict at the conclusion of plaintiff's testimony and at the conclusion of all the testimony; (3) error of the court in permitting plaintiff to introduce evidence in chief as rebuttal testimony; (4) error of the court in giving instructions Nos. 1 and 2; (5) improper conduct of plaintiff's counsel in his concluding argument to the jury; and (6) that the verdict is against the law and weight of the evidence.
Before undertaking to discuss and dispose of these several alleged errors it is insisted were committed by the trial court, we deem it timely to first make a brief statement of the facts and circumstances, as disclosed by the very conflicting testimony given by the witnesses of the opposing parties, surrounding and causing Bennett's death.
The only undisputed facts disclosed by the record are, it appears, that the deceased, Nolan Bennett, was at the time he met his accidental death upon this occasion, employed as a coal loader at a mine in Benham, near Cumberland; that upon finishing his day's work, on the evening of April 7, 1937, at about dark, he left his home in Cumberland, alone in his car, to drive to Harlan.
The testimony of all the witnesses is in accord as to the course the car was being driven over the highway at the time Bennett was killed, as to which it is agreed that his car was running on its right side of the highway over a down grade in the road, and was entering a curve in the road when it left the hard surfaced part of the highway and ran into a ditch, in which it continued to run for some distance, until, striking a large rock in or across the ditch, his car was caused to swerve to the left, and, running diagonally across the road, plunged over its precipitous left embankment, landing on the railroad tracks below, the accident and fall resulting in the destruction of the car and Bennett's instant death.
The theory of plaintiff's action, brought against defendant for recovery of damages for Bennett's death, is based on the assumption of the existence of the three facts alleged in the petition: (1) That the car, the negligent operation of which (it is alleged) caused Bennett's death, belonged to the defendant; (2) that Henry Thomas, the driver of this car at the time of the accident and charged with its then negligent and reckless operation, was at the time the agent and servant of the defendant; and (3) that Thomas was, upon this occasion when it is claimed he was driving defendant's car as a taxicab, with a passenger from Harlan to Cumberland acting within the course of his employment and in pursuance of the business of the defendant as his principal.
Appropriate pleadings made up the issues joined on these allegations of the petition.
The plaintiff, having alleged the existence of these facts as basic to his right to a recovery of damages, has assumed the burden of proving them. To maintain this burden, he first introduced the evidence of Troy Wallace and Joe Moton, a colored man, directed to show the defendant Davis' ownership of this car involved in the accident and that it was at the time being driven by Henry Thomas as his agent.
Wallace's testimony is that he was driving upon this same highway at the time and near the place where Bennett's accident and death occurred and that, when but a short distance from that place, he was crowded from the right side...
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