Frick v. Bickel

Decision Date05 May 1944
Docket Number17239.
Citation54 N.E.2d 436,115 Ind.App. 114
CourtIndiana Appellate Court

Wallace Mehl, of Goshen, and Arnold, Degnan Goheen & Zimmerman, of South Bend, for appellant.

Guy Dausman, of Goshen, for appellee.


The appellant is a contractor engaged in the business of building, altering and repairing public roads and as such maintains an office and garage for the housing of trucks and other equipment in Goshen. On the 27th day of November, 1941, he had one Frank H. Schwab in his employ in the capacity of a truck driver and shortly after 5 o'clock in the afternoon of said day, the said Schwab, while driving one of the appellant's trucks was involved in a collision with an automobile in which the appellee was riding as the guest of the driver thereof and as the result of such collision said appellee suffered personal injuries because of which she brought suit in the Elkhart Circuit Court to recover resulting damages. Trial was had to a jury and resulted in a verdict for the appellee in the sum of $1,500 upon which appropriate judgment was entered and this appeal followed. The sole error relied upon for reversal is the action of the Elkhart Circuit Court in overruling appellant's motion for a new trial which complains that (1) the jury's verdict is not sustained by sufficient evidence; (2) said verdict is contrary to law; (3) the court erred in refusing to give a peremptory instruction at the close of all the evidence directing a verdict for the appellant; and (4) the court erred in giving certain instructions tendered by the appellee and in refusing to give the appellant's tendered instruction No. 3. The theory of the appellee's case, both as she alleged it in her complaint and as she presented it to the court and jury below, is that she was injured solely through the careless and negligent acts and omissions of said Schwab who, at the time of such negligent conduct, was acting within the scope of his employment and engaged in the appellant's business, and therefore Schwab's alleged negligence must be imputed to said appellant under the doctrine of respondeat superior.

The appellant first contends that, assuming Schwab to have been negligent to the leged, the evidence most favorable to the verdict is wholly insufficient to warrant the application of the rule of respondeat superior and thus establish his liability for such negligence, nor, says the appellant, is there any evidence from which reasonable inferences can be drawn that would justify the application of such rule. As bearing on this question and tending to support the jury's verdict we find evidence of the following facts: On the 27th day of November, 1941, Frank H. Schwab was, and had been for some months, and employee of the appellant in the capacity of a truck driver. That at said time the appellant was engaged in a road construction job of some character at or near Buchanan, Michigan, and for two or three days prior to and including the day of the accident Schwab had driven the truck in question back and forth between Goshen and Buchanan moving road materials from one place to the other. A little before 5 o'clock in the afternoon of said 27th day of November, 1941, Schwab drove the truck in question to the appellant's office in Goshen where he remained for a short time and then drove away in said truck. The accident in controversy happened shortly thereafter a few miles west of Goshen on U. S. Highway No. 33. During the period of his employment with the appellant Schwab lived in Elkhart and at times went to and from work in one of the appellant's cars.

We are of the opinion that from these facts a presumption logically arises that at the time and place of the accident Schwab was engaged in the appellant's business and acting within the scope of his employment and that said facts, aided by such presumption, establish a prima facie case on that issue. Although there is a sharp legal controversy on the subject the weight of authority seems to be that proof of ownership of the automobile causing an accident, together with added proof that the negligent driver was in the general employment of the defendant, raises a presumption that the driver was about his master's business and acting within the scope of his employment. See Blashfield's Cyclopedia of Automobile Law and Practice, Vol. 9, Perm.Ed., § 6065, p. 411. The Wisconsin courts have expressed the doctrine in this manner:

'The rule is accepted in this state that, where a plaintiff seeks to hold the owner of a car liable for injuries inflicted when the car was being operated by another, proof of the ownership makes out a prima facie case. This is on the theory that the fact of ownership justifies an inference or raises a presumption that the driver of the car is the agent of the owner, and that he is driving it in pursuit of the owner's business. In Enea v. Pfister, 180 Wis. 329, 192 N.W. 1018, 1019, it is said : 'We regard this as a just and reasonable rule. It is generally an easy matter to prove the ownership of a car that inflicts injury. The public records afford evidence of this fact. But the question of whether the car was at the time being operated in the prosecution of the defendant's business is a matter pecularly within the knowledge of the defendant, and one upon which it is at times exceedingly difficult for the plaintiff to obtain proof. The exigencies of justice require the application of such a rule, which we approve and adopt.' Borger v. McKeith, 198 Wis. 315, 224 N.W. 102, 103.' Gehloff v. De Marce, 204 Wis. 464, 234 N.W. 717, 718.

This court subscribed to this rule in the case of Midland Trail Bus Lines, Inc. v. Martin, Adm'x, 1934, 100 Ind.App. 206, 194 N.E. 862, wherein it is held that evidence to the effect that a bus which collided with an automobile in which plaintiff's decedent was riding, which bus was owned by the defendant, a common carrier engaged in inter-state commerce, warranted the inference that the bus driver was the defendant's agent. In a case very similar in its facts to the one at bar the Appellate Court of Ohio held that in an action for injuries, resulting from being struck by a truck, where the evidence established the fact that at the time of the accident said truck was in charge of a servant whose duty it was to operate it, and who was regularly in possession and use of the same, the presumption arises that the servant, at the time, was acting within the scope of his authority. Schmidt & Schmidt v. Schwab, 1922, 17 Ohio App. 127, 74 A.L.R. 962 note.

Although evidence of ownership coupled with proof of general employment and the presumption that arises therefrom makes a prima facie case sufficient to go to the jury, according to an unbroken line of authorities, such presumption is a rebuttable one. Otherwise expressed, such a prima facie showing will support a verdict in favor of a person injured in a collision, in the absence of substantial proof to the contrary. Ransford v. Ainsworth, 1925, 196 Cal. 279, 237 P. 747. It also seems to be generally recognized that the jury cannot arbitrarily or capriciously disregard the undisputed testimony of credible witnesses introduced to obviate the effect of the presumption. Green v. Powell, 1939, 22 Tenn.App. 481, 124 S.W.2d 269. It has been held by some courts that this presumption is not evidence but is legal in its nature and administrative in its purpose and effect, and therefore vanishes or...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT