Ellsworth v. Ludwig
| Decision Date | 28 February 1967 |
| Docket Number | No. 2,No. 20117,20117,2 |
| Citation | 223 N.E.2d 764,140 Ind.App. 437 |
| Parties | Barbara ELLSWORTH, Appellant, v. Alma Mary LUDWIG, Executrix of Le Roy Ludwig, Deceased, Substituted as PartyDefendant for Le Roy Ludwig, doing business as Service Coal Company, Appellee |
| Court | Indiana Appellate Court |
Bernard S. Schrager, Max Buntman, South Bend, George S. Keller, Niles, Mich., for appellant.
William E. Mills, R. Kent Rowe, South Bend, for appellee.
This action arose in the Elkhart Circuit Court and involves a suit to recover damages for personal injuries sutained by the plaintiff-appellant, Barbara Ellsworth.
It appears from the record that appellant's husband, Kenneth Ellsworth, was well known in the community for his ability to consume alcoholic beverages, and he was known to exhibit this proclivity during working hours at his place of employment. Kenneth was employed as a truck driver by Le Roy Ludwig, the defendant-appellee. The defendant, now deceased, did business under the name of 'Service Coal Company' in Elkhart, Indiana. Decedent's wife, Alma Ludwig, was substituted as party defendant by the trial court.
On September 9, 1958, Kenneth Ellsworth telephoned his employer from a tavern and asked for permission to drive the company truck to his home. When he approached his house about 4:30 p.m., his wife was sitting in the yard. Kenneth drove into the yard, over his wife and crashed into the house.
The plaintiff-appellant suffered severe injuries which resulted in the amputation of her left leg above the knee, and she sued in the court below for $200,000.00 damages.
Plaintiff did not sue her husband but proceeded against his employer, Le Roy Ludwig, upon the theory that the appellee was negligent in entrusting his truck to an unfit driver. Evidence was introduced to show that Kenneth was an unfit driver. A State Trooper who had examined him at the scene of the accident testified that at that time Kenneth was intoxicated. Several witnesses testified that Kenneth was known for his ability to consume large amounts of alcoholic beverages.
After the jury had returned a verdict of $90,000.00 for the appellant and judgment was rendered thereon, the trial court sustained the appellee's motion for a new trial. The appellant now maintains that the lower court erred in sustaining appellee's motion for a new trial.
The main issue in this cause is not the fact of Kenneth's unfitness as a driver, but whether the appellee-employer knew that Kenneth was unfit to drive when he entrusted the truck to him.
In Fisher v. Fletcher (1922), 191 Ind. 529, 133 N.E. 834, 22 A.L.R. 1392, our Supreme Court held that in order to recover against the owner-bailor of a car, the borrower-bailee must be drunk at the very moment of the entrustment, and the bailor must have actual and immediate knowledge of this fact.
The appellant contends that because of social and automotive developments since 1922, the law expressed in Fisher v. Fletcher, supra, is no longer adequate. In view of the present need fr highway safety he argues that the prior case law has been superseded by the existing entrustment statutes set out below.
Burns' Indiana Statutes Annotated, Sec. 47--2906, provides:
'No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven by any person who has no legal right to do so or in violation of any of the provisions of this act.' (Emphasis supplied.)
Burns' Indiana Statutes Annotated, Sec. 47--2306, provides:
'It is unlawful for the owner, or any other person, employing or otherwise directing the driver of any vehicle to require or knowingly to permit the operation of such vehicle upon a highway in any manner contrary to law.' (Emphasis supplied.)
Burns' Indiana Statutes Annotated, Sec. 47--1214, provides, in part,
'* * * that operation by irresponsible persons or any other operation threatening the safety of the public or detrimental to the general welfare be prevented; * * *.'
It is the opinion of this Court that the above statutes are not inconsistent with nor do they supersede prior existing case law. The statutes' general theme is that one who entrusts a dangerous article to another, knowing that it will be used in such a manner as to endanger persons and property, is acting in violation of the statutes.
In Opple et al. v. Ray (1935), 208 Ind. 450, 456, 195 N.E. 81, the court held that where a bailor entrusts a dangerous article to a bailee, knowing that it will be used in such a manner as to endanger persons and property, he is chargeable with negligence and answerable for all foreseeable injuries.
It is apparent that the above statutes substantially reiterate the case law set out in Fisher v....
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Standard Mut. Ins. Co. v. Bailey
...in a negligent manner so as to endanger persons or property. Lather v. Berg, 519 N.E.2d 755 (Ind.Ct.App.1988); Ellsworth v. Ludwig, 140 Ind.App. 437, 223 N.E.2d 764 (1967). The Indiana courts have recognized that "the theory of negligent entrustment of an automobile is an exception to the c......
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Leone v. Doran
...visibly under the influence of intoxicating liquor (Leblanc v. Pierce Motor Co., 307 Mass. 535, 538, 30 N.E.2d 684; Ellsworth v. Ludwig, 140 Ind.App. 437, 223 N.E.2d 764; compare Adamian v. Three Sons, Inc., 353 Mass. 498, 501, 233 N.E.2d 18) or to one who he knew was suffering from an acut......
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Sports, Inc. v. Gilbert
...is intoxicated at the time he entrusts the car to him. Fisher v. Fletcher, (1922) 191 Ind. 529, 133 N.E. 834; Ellsworth v. Ludwig, (1967) 140 Ind.App. 437, 223 N.E.2d 764. However, this rule only applies to those who own or have the right to control the automobile or chattel in question. Se......
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Davis v. Macey, Cause No. 2:12–CV–98–PRC.
...found in which a negligent entrustment claim was brought against an employer for the acts of his employee was in Ellsworth v. Ludwig, 140 Ind.App. 437, 223 N.E.2d 764 (1967). In Ellsworth, the plaintiff did not bring a claim under respondeat superior, likely because the employee was off dut......