Euster v. Vogel
| Decision Date | 08 February 1929 |
| Citation | 227 Ky. 735 |
| Parties | Euster v. Vogel. Same v. Ellis. |
| Court | United States State Supreme Court — District of Kentucky |
2. Appeal and Error. — Court of Appeals cannot consider original instructions sent to it for purpose of correcting bill of exceptions, not claimed to have been copied wrongly by clerk in making up record, especially where such instructions contain interlineations seemingly in judge's handwriting; place to correct bill being in lower court.
3. Appeal and Error. — While transcript of evidence, properly certified by judge, may be used as bill of exceptions in certain cases, regular bill of exceptions in record must control in case of discrepancy between instructions therein and those in transcript of evidence, since they have no proper place in transcript not filed as bill of exceptions.
4. Automobiles. — In actions for injuries, in collision between automobiles, instruction, to find for plaintiffs, if car, in which defendant was riding, was owned or claimed by him or being operated by members of his family, with his knowledge and consent, for purpose for which it was kept, held erroneous as not making liability under family purpose doctrine turn on whether defendant owned, maintained, or provided automobile for his family's use.
5. Automobiles. — One indispensable requisite of the family purpose doctrine is that person, on whom liability for injuries to another is sought to be fastened thereunder, owns, maintains, or provides automobile for general use, pleasure, and convenience of his family.
Appeals from Laurel Circuit Court.
MORRIS & JONES, R.L. MADDOX, C.R. LUKER, FINLEY HAMILTON and CHARLES A. WOOD for appellant.
WM. LEWIS & SON for appellees.
Reversing.
On the 25th day of July, 1926, the appellee A.G. Vogel was driving his automobile, a Chrysler 72, along the Dixie highway between London and Corbin. The appellee, Mrs. Lizzie Ellis, a relative by marriage, was with him in the machine. As he was crossing a ravine on a high fill, where the road was somewhat narrow, a Studebaker machine, going in the opposite direction, and driven by Lillian Euster, collided with his machine. As a result of the collision both machines were precipitated to the ground at the base of the fill. The appellant, Robert Euster, who was the father of Miss Lillian Euster, her brother, Aham Euster, her sister, Miss Freda Euster, and another brother, were riding in the Studebaker machine with Miss Lillian Euster at the time of the accident. There was evidence to sustain the theories of both sides to this controversy as to how this accident happened. Each side claimed that, while its machine was on the right side of the road, the other's machine swung to the wrong side of the road in the effort to pass without any warning an automobile just in front of it and going in the same direction, and that the collision was thereby brought about. It is not disputed but that which machine was in fault was a question for the jury, and that its finding, that it was the Euster machine, is not supported by sufficient evidence.
The Vogel machine was practically destroyed by the collision, and both Vogel and Mrs. Ellis received personal injuries of a more or less serious nature. They both brought suit against Robert Euster to recover for the injuries they had thus sustained, and on separate trials in the court below the jury awarded Mrs. Ellis a verdict of $3,000 and Vogel a verdict of $2,000. From the judgments entered on those verdicts these appeals are prosecuted. As the two cases in the main involve the same questions, they were heard together in this court, and will be disposed of by this one opinion.
The defense of Robert Euster, besides the claim of negligence on the part of the owner of the Vogel car, and the denial of any negligence on the part of the driver of the Euster car, was that he was not the owner of the Euster car, and had nothing to do with its maintenance or operation, and that it belonged to his daughter, Miss Lillian Euster, and her stepmother, his present wife, who only were responsible for its maintenance and operation. In the Ellis case, which was tried first, the only evidence which Mrs. Ellis produced to establish ownership of the Euster car in Robert Euster was the testimony of Vogel, to the effect that at the time of the accident he asked Robert Euster to whom the Euster car belonged, and Robert Euster replied that it was his. She also produced a letter, written by Robert Euster to Vogel some time after the accident, which reads in part: "We will ask you to kindly send us a check for $52.00 damages we sustained last Sunday in an accident as we think it is much proper to settle same without any difficulty."
On the other hand, Robert Euster, after denying that he made the admission as to ownership claimed by Vogel, testified that he did not own, maintain, or operate the car, that it was bought in 1922 by his daughter, Miss Lillian, and by his wife, Mrs. Robert Euster, the stepmother of Miss Lillian, out of their own funds. To corroborate his statement, he produced the bill of sale made out by the Studebaker agency which sold the car, and in which Miss Lillian and Mrs. Euster were named as the purchasers. He also produced the city clerk of Middlesboro where he lived, and by him established that the city license for 1926 was in the name of these ladies. He also introduced in evidence an insurance policy for the year 1926, insuring these ladies against liability on acount of the operation of this car. His son, Aham, and his daughter, Miss Freda, gave like testimony, although in the Vogel case there was evidence to show that after the accident Aham referred to the Studebaker car as "his father's car which had been in an accident," which alleged statement was denied by Aham Euster. The appellant's wife, of course, was not a competent witness, and Miss Lillian was in New York at the time these cases were tried, and did not give her testimony either in person or by deposition. On this state of the evidence in the Ellis case, appellant insists that he was entitled to a peremptory instruction, on the ground that the evidence established that he was not the owner of the car and had nothing to do with its maintenance or operation at the time of the accident. In support of his contention he cites the case of Scheible v. Kalkoff, 210 Ky. 789, 276 S.W. 846. In that case Mr. and...
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