Gladdish v. Southeastern Greyhound Lines
| Decision Date | 05 March 1943 |
| Citation | 293 Ky. 498 |
| Parties | Gladdish v. Southeastern Greyhound Lines. |
| Court | United States State Supreme Court — District of Kentucky |
1. Appeal and Error. — Where order filing bill of exceptions showed that it was signed by the trial court, although clerk failed to copy signature of judge approving bill, bill was not subject to motion to strike on ground that it was not approved by judge.
2. Appeal and Error. — Where, although bill of evidence was not in express terms made a part of bill of exceptions, bill of exceptions stated that proceedings with reference to the evidence appeared in bill of evidence and both bills were filed by the same order, making only bill of exceptions part of the record, and trial court treated both bills as part of the record, bill of evidence was not subject to motion to strike on ground that it was not filed as part of bill of exceptions.
3. Appeal and Error. — In determining propriety of trial court's directing verdict for defendant, plaintiff's evidence was taken as true.
4. Carriers; Master and Servant. — Ordinarily, a master is liable to a third person for injuries inflicted by servant only when the servant was acting within the scope of his employment, but in the cases of passenger and carrier relationship, liability may be imposed upon the carrier in favor of the passenger for wrongs inflicted by the carrier's servant upon the passenger though the servant may have been acting for his own purposes and with no intent to benefit the carrier.
5. Carriers. — A carrier is liable for assaults committed on passengers by its employees, whether the assault is in the supposed interest and discharge of a supposed duty to the carrier, or is that of an individual motivated by conceptions entirely disconnected with the performance of his duty.
6. Carriers. — Where bus driver ordered alighting passenger to stand near steps of bus to converse relative to passenger's complaint about manner in which bus had been driven, and upon passenger's refusal to abide by his order, driver followed passenger across the street and assaulted him, bus company was liable to passenger for the injuries inflicted by the driver on ground that driver was acting "within scope of his employment."
Appeal from Christian Circuit Court.
Walter Robinson for appellant.
R.W. Keenon and White & Clark for appellee.
Before Ira D. Smith, Judge.
Reversing.
The appellant seeks to reverse a judgment entered on a directed verdict for appellee at the conclusion of appellant's evidence in an action for damages for personal injuries inflicted on appellant in an assault by appellee's bus driver.
A preliminary question to be disposed of is appellee's motion to strike the bill of exceptions and bill of evidence. The motion is to strike the bill of exceptions because it was not approved by the judge and to strike the bill of evidence because it was not filed as a part of the bill of exceptions. We find, however, that although the clerk in copying the bill of exceptions into the record failed to copy the signature of the judge approving the bill nevertheless the order filing the bill of exceptions shows that it was examined, approved and signed by the court. The mere failure of the clerk to copy the signature of the judge at the end of the bill is not sufficient to warrant a dismissal in these circumstances. And, while the bill of evidence is not in express terms made a part of the bill of exceptions, nevertheless it is stated in the latter that all the proceedings with reference to the evidence appear in the bill of evidence. Further, the bill of exceptions and bill of evidence were filed at the same time and by the same order and, although by this order only the bill of exceptions was made a part of the record, it is apparent that the court treated both the bill of evidence and the bill of exceptions as a part of the record. In these circumstances we think the motion to strike the bill of evidence should also be overruled. It may be added that even if the bill of evidence were stricken certain evidence set out in the bill of exceptions would probably be sufficient to sustain our conclusion that the case should have been submitted to the jury.
Appellant's evidence, which must be taken as true in determining the propriety of the trial court's action in directing the verdict, discloses the following facts. Appellee is a common carrier. Appellant became a passenger on appellee's bus running from Pembroke to Hopkinsville. During the course of travel appellant complained to the bus driver that the bus was being driven so rapidly over rough places as to cause him much pain on account of a physical condition with which he was afflicted. This aroused resentment on the part of the driver. When appellant alighted from the bus at Hopkinsville, along with other passengers, the driver said to him, "You stand over there, I want to see you." Appellant protested, saying he was in a hurry and had to go. The driver then said, "I said for you to stand over there." Appellant again protested and the driver said, "Stand there by that post." Appellant replied, "I am not taking orders from you" and proceeded across the street. The driver followed him to the...
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