Falender v. Hankins

• Decision Date: 18 January 1944
• Citation: 296 Ky. 396
• Parties: Falender v. Hankins.
• Court: United States State Supreme Court — District of Kentucky

296 Ky. 396

Falender v. Hankins.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

January 18, 1944.

1. Automobiles. — Where garage employee, in delivering automobile, drove a round-about course for stated purpose of testing repairs and collided with another automobile, holding as a matter of law that employee at time was not acting on employer's business was error.

2. Statutes. — When a statute has been construed by a court of last resort and is thereafter substantially re-enacted Legislature is deemed to have adopted such construction unless contrary is clearly shown by language of act or unless rules of statutory construction have been changed.

3. Statutes. — The statute imposing joint and several liability upon one furnishing an automobile to a minor under age of 18 for negligence of minor is not limited by title, as it was when adopted in first instance, since adoption of Kentucky Revised Statutes was a complete enactment of statutory law of the Commonwealth. KRS 186.590(3); Const. sec. 51.

4. Automobiles. — Garageman who gave 17 year old employee automobile to deliver to customer was jointly and severally liable with employee for employee's negligence notwithstanding that garageman was not owner of automobile. KRS 186.590(3).

Appeal from Jefferson Circuit Court.

Morris, Garlove & Goldsmith for appellant.

Leland Mahan and Edwin O. Davis for appellee.

Before William H. Field, Judge.

OPINION OF THE COURT BY VAN SANT, COMMISSIONER.

Affirming.

Appellant, Ben Falender, operates the Phoenix Garage at 430 East Broadway, in Louisville. It is a few doors west of the tire company known as "Hurry Up Broadway." On the 20th day of October, 1942, William Cinnamon was employed by appellant, and was directed by his shop foreman to install a thermostat in the automobile of Ira Humphrey, an official of Hurry Up Broadway. When the work was finished, the foreman directed Cinnamon to deliver the car to its owner at his place of business. Instead of proceeding directly east on Broadway to his destination, Cinnamon drove the car west, thence south to Jacob Street; thence east to Brook Street; and before arriving at his destination collided with appellee's, Betty Lee Hankins', automobile. Cinnamon plausibly explained that he chose the route on which he was traveling in order to test his workmanship before delivering the car to its owner. At the time of the accident, Cinnamon was seventeen years of age; and, if material, he testified that he informed Falender of this fact at the time of his employment. This action was instituted by appellee against Cinnamon and Falender to recover for alleged personal injuries and property damage, by reason of the negligence of Cinnamon in the operation of the car which was furnished him by his employer to deliver to its owner. Judgment was pronounced upon a verdict in favor of appellee against both Cinnamon and Falender, and the latter has appealed.

The court sustained, as a matter of law, the defense pleaded by appellant that Cinnamon was not acting on appellant's business, or within the scope of his employment, at the time of the accident; and, while we are of the opinion the court erred in so holding, it is unnecessary for us to discuss this question, because of the conclusion hereinafter expressed. KRS 186.590, among other things, recites:

"(1) * * *

"(2) * * *

"(3) Every motor vehicle owner who causes or knowingly permits a minor under the age of eighteen to drive the vehicle upon a highway, and any person who gives or furnishes a motor vehicle to the minor shall be jointly and severally liable with the minor for damage caused by the negligence of the minor in driving the vehicle."

It is not contended on this appeal that the evidence is not sufficient to support the jury's finding that Cinnamon was negligent, and that such negligence on his part was the sole cause of the injuries complained of; but a rather ingenious argument is propounded in support of the contention that the provisions of 186.590, supra, are not applicable to one who gives or furnishes a motor vehicle to a minor, unless the person furnishing the motor vehicle is the owner thereof. It is argued that Subsection (3) of Section 186.590, KRS, was a re-enactment, in virtually identical language, of Section 2739m-54, Carroll's Kentucky Statutes, being Section 22 of Chapter 13, Acts of the Third Extraordinary Session of the 1936 General Assembly, and that this section was construed in Ingram's Adm'r v. Advance Motor Co., 283 Ky. 87, 140 S.W. (2d) 840, to apply only to owners of motor vehicles; and, since that opinion so declared, the Legislature, in re-enacting that section of the Statute in substantially the same phraseology, did so in the light of the...