Fisher v. Fletcher, 23967.

• Court: Indiana Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Fisher v. Fletcher, 191 Ind. 529, 133 N.E. 834 (Ind. 1922)
• Decision Date: 02 February 1922
• Docket Number: No. 23967.,23967.
• Parties: FISHER v. FLETCHER.

191 Ind. 529

133 N.E. 834

FISHER

v.FLETCHER.

No. 23967.

Supreme Court of Indiana.

Feb. 2, 1922.

Appeal from Circuit Court, Rush County; Fred C. Gause, Judge.

Action by Neelus L. Fisher against Stoughton A. Fletcher. From a judgment for defendant on demurrer, plaintiff appealed to the Appellate Court which transferred the case to the Supreme Court (131 N. E. 24). Transferred from the Appellate Court under Burns' Ann. St. 1914, § 1399. Affirmed.

W. J. Beckett, Ryan & Ruckelshaus, and W. F. Elliott, all of Indianapolis, for appellant.

J. W. Fesler, Harvey J. Elam, and Howard S. Young, all of Indianapolis, Kiplinger & Smith, of Rushville, and Robert W. Mason, of Greenfield, for appellee.

PER CURIAM.

This was an action by appellant against the appellee for damages. The complaint is in a single paragraph, and alleges, in substance, among other things, that on May 29, 1909, and for at least one year prior thereto the appellee had in his employ as a chauffeur one Frank Clemens, who was under the orders of appellees at all times, except occasionally he would be allowed to leave his regular work as such chauffeur, and to use his time as he saw fit for his own purposes and pleasure; that the appellee during such time would permit the said Clemens to have access to his garage, and full control of his large and powerful automobile for use as he saw fit for his own pleasure, as part compensation for his services as chauffeur; that the appellee knew that the said Clemens was in the habit of drinking intoxicating liquors to excess, and of becoming intoxicated when he was released from his regular work as aforesaid; that he knew that at said times the said Clemens was in the habit of using appellee's said automobile while intoxicated, and that the appellee negligently consented to such use by the said Clemens while he was in his employ; that appellee knew that the said Clemens was a wild and reckless driver of his said automobile, and would run the same, when in his charge, at a high, dangerous, and unlawful rate of speed; that he knew that the said Clemens had been arrested, convicted, and fined for driving said automobile in such a manner while in his employ; that he knew that said Clemens while in his employ, and prior to the grievance hereinafter mentioned, had run his said automobile unlawfully against vehicles and persons on the streets of the city of Indianapolis, and on the highways of Marion county, that he knew that the said Clemens, when in in his employ, and while running his automobile at such high and unlawful rate of speed, had collided with objects, and was an unfit person to be intrusted with an automobile on the streets of said city and the highways of said county; that he knew that it was dangerous to permit said Clemens to have access to his said automobile or to use the same, and that said Clemens was a menace to the public upon the streets of said city and highways of said county, while driving his automobile thereon, by reason of the reckless and unlawful manner in which he drove the same; that notwithstanding such knowledge, the appellee continued said Clemens in his employ, and negligently permitted him to use his said automobile when not on regular duty, for his own private and personal uses, purposes, and pleasures; that on the night of May 28, 1909, the said Clemens was not on regular duty as such chauffeur; that between 9 and 10 o'clock of said night he took the appellee's said automobile from the garage on the premises where it was kept, and drove it to the city of Indianapolis, where he kept and used the same during the night, as was his custom when not on regular duty as chauffeur, and as was his privilege and right under his employment; that on the following morning about 4 o'clock, while under the influence of intoxicating liquors, he started to return said automobile to the premises of the appellees; that while on his way there he drove said automobile south on South Meridian street in the said city at a high, dangerous, and unlawful rate of speed, to wit, at 50 miles per hour, and on the east or left-hand side thereof in violation of an ordinance of said city which was at the time in full force; that the said Clemens, while in the said state of intoxication, and driving the automobile as aforesaid, negligently ran the same against the appellant's horse and wagon, while the appellant was driving the same north on the east side of said street, thereby killing said horse, and inflicting personal injuries on the appellant; that the said injuries were inflicted by reason of the negligence of the appellee in authorizing and permitting the said Clemens to have and use said automobile when not on regular duty, as aforesaid. These allegations are followed by description of the appellant's injuries and a demand for damages in the sum of $15,000. A demurrer to this complaint for alleged want of facts sufficient to constitute a cause of action was sustained, and, the appellant failing and refusing to plead further, judgment was rendered against him, and he perfected this appeal. The only error assigned is the sustaining of said demurrer to the complaint.

[1] The rule is now firmly established in this state, in harmony with the decisions in many other jurisdictions, that where a chauffeur, either with or without consent of the owners, uses an automobile for his own business or pleasure, when not on regular duty, and inflicts injury on another by reason of his negligence...