Guy W. Smith & Sons v. Dawson

• Decision Date: 09 December 1924
• Citation: 266 S.W. 926,206 Ky. 107
• Parties: GUY W. SMITH & SONS v. DAWSON.
• Court: Kentucky Court of Appeals

266 S.W. 926

206 Ky. 107

GUY W. SMITH & SONS v. DAWSON.

Court of Appeals of Kentucky.

December 9, 1924

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by P. L. Dawson against Guy W. Smith & Sons. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

O'Neal & O'Neal, Doolan & Doolan, and Fred Starck, all of Louisville, for appellant.

Edwards Ogden & Peak, of Louisville, for appellee.

SANDIDGE C.

Appellant Guy W. Smith & Sons, is a Kentucky corporation and engages in the business of moving furniture and household effects by the use of moving trucks, its place of business being Louisville, Ky. Appellee, P. L. Dawson, sued appellant, joining two cases of action in one petition. First he sought to recover of appellant the damages done to his Ford touring car, which resulted from a collision between it and one of appellant's trucks alleged to have been caused by the negligence of the driver of the truck. He also sought to recover damages for personal injuries to himself for an assault committed upon him by one of appellant's employees. By way of defense, with reference to the injury to the automobile, appellant denied that the collision and damage was the result of its negligence or that of the driver of its truck, and affirmatively pleaded that the collision and consequent damages resulted from the negligence of appellee. With reference to the personal injury, appellant affirmatively pleaded that it was not answerable for the assault upon appellee if one of its employees assaulted him, because in so doing the employee was not acting for it or within the scope of his employment. The two causes of action were submitted to the jury in separate instructions, and upon the issue as to damages to appellee's automobile, the jury found for appellant, but upon the issue as to appellee's personal injuries from the assault, found for appellee a $1,500 verdict. Judgment was entered accordingly and hence this appeal.

It is insisted by appellant that the trial court erred in not sustaining its motion for a peremptory instruction as to the personal injury feature of the case. The pertinent facts are these: The truck owned by appellant with which appellee's automobile collided had been engaged in moving furniture on the day in question. The empty truck was on its way back to the office of appellant. Three of appellant's servants were on the truck, the chauffeur and two helpers. They were all negroes. The truck and appellee's Ford collided and according to the testimony of appellee, immediately after the collision he went from his machine to appellant's truck for the purpose of ascertaining the number of the truck and its owner, so as to know who was responsible to him for the damage inflicted upon his automobile. The driver of the truck refused to disclose the name of the owner or number of the truck and was insulting in his remarks to appellee. An argument arose between them as to who was responsible for the collision, and while the argument was in progress a crowd congregated at the scene of the collision. Appellee stated that because he was unable to get any information from the chauffeur in charge of the truck as to its owner or number, and because of the confusion that arose when the crowd collected, he left the front of the truck and having procured a pencil and piece of paper from a friend who had come up, went to the rear end of the truck and climbed up into its body for the purpose, as he stated, of ascertaining its number so as to identify the owner. He testified that he did not know that there was any one in the body of the truck and that when he had proceeded about half its length he was struck down and knocked unconscious. He stated that he did not know anything for something like two days, eventually regaining consciousness in one of the hospitals of the city. He stated that he did not know who struck him. The testimony shows that a partition separated the seat used by the chauffeur and one of the helpers from the body of the truck. Witnesses for appellant who were on the street near the truck testified that when appellee had reached a point about the center of the bed of the truck he was struck with an iron pipe by one of appellant's employees who was in the body of the truck. By the time that happened or probably before, one of appellee's friends, who had reached the scene of the collision shortly after it occurred, assaulted the negro driver of the truck by striking him on the head, and it appears that there was considerable incendiary talk among those gathered about the truck. The chauffeur of the truck, sensing danger to himself and those with him, started the truck and drove away. At the time he did so he does not appear to have known that appellant's...