Hall v. Young

• Decision Date: 22 May 1920
• Docket Number: 33247
• Citation: 177 N.W. 694,189 Iowa 236
• Parties: JUDSON HALL, Appellee, v. E. E. YOUNG, Appellant, et al., Appellee (and one other case)
• Court: Iowa Supreme Court

177 N.W. 694

189 Iowa 236

JUDSON HALL, Appellee, v. E. E. YOUNG, Appellant, et al., Appellee (and one other case)

No. 33247

Supreme Court of Iowa, Des Moines

May 22, 1920

REHEARING DENIED JULY 6, 1920.

Appeal from Linn District Court.--F. O. ELLISON, Judge.

ACTION by the plaintiff in each suit against defendants for damages. The causes were tried together, and resulted in separate verdicts, and judgment in favor of each of the plaintiffs. The defendants appeal.

Reversed.

E. A Fordyce and H. S. Johnson, for appellants.

Hughes Sutherland & O'Brien and C. L. Taylor, for appellees.

LADD, J. WEAVER, C. J., GAYNOR and STEVENS, JJ., concur.

OPINION

LADD, J.

At about 30 minutes after noon of September 12, 1914, Judson Hall, 11 years old, and his brother, 5 years of age, with their little wagon, loaded with groceries, were waiting between the curb and street car track for the car to pass. As it swung around a curve to Third Avenue, a two-seated automobile, moving at a high rate of speed, struck them, throwing one against and the other under the car. Each was seriously injured, and, by his next friend, brought action against defendant Thomas Young, who was operating the automobile, and E. E. Young, who was not present. In an amendment to his answer. Thomas Young admitted that he was operating the automobile; that negligence in so doing caused the injuries; and that he alone is liable therefor. His father, E. E. Young, interposed a general denial, and he only appeals. The two actions were tried together, and separate verdicts returned. Our inquiry is limited to ascertaining whether error was committed against E. E. Young. To sustain the finding of the jury, the evidence must have been such as to have warranted the conclusion that the father was legally responsible for what his son did. Wagner v. Kloster, 188 Iowa 174, 175 N.W. 840. That body was told, in the fifth instruction, that:

"Before he can be held liable to plaintiffs for any damage caused through the negligence of Thomas Young in operating the automobile in question, the plaintiff must prove, by a preponderance of the evidence,--that is, by the greater weight or value of the evidence,--that, at the time the plaintiffs were injured, Thomas Young was the agent, servant, or employee of E. E. Young, and was employed in or about the business of E. E. Young, and in the operation and management of said automobile, or that both of the defendants owned the automobile in question together, and both were interested as partners, or were otherwise engaged in a joint enterprise or common purpose, and were using the automobile in connection therewith when the plaintiffs were injured. If the plaintiffs have so established either of said propositions, then both defendants would be liable for the damages caused by the negligent operation of the said car, and you should so find. But if neither of said propositions has been established, then the defendant E. E. Young would not be liable in this action."

The exceptions to this instruction, interposed by appellant, were that the evidence was not sufficient to carry the issues to the jury, because it is therein assumed against this defendant that damages were caused by the negligent operation of the car, and that it tended to lead the jury to think Thomas' admission of negligence was binding on his codefendant. The last exceptions are without foundation; for, in the previous paragraph of the charge, the jury was fully and correctly instructed on this subject. Appellant argues that the instruction is erroneous in permitting recovery upon the finding of agency or partnership, without exacting a further finding that Thomas was engaged within the scope of the agency or partnership. This point was not raised by the exception to the instruction, and may not be considered. Anthony v. O'Brien, 188 Iowa 802, 175 N.W. 750. There was evidence tending to show partnership, or, at least, that father and son were together interested in the automobile business. One Newman testified to being proprietor of a garage; that, at the instance of the police, he took the automobile to his garage; that a demonstration number in the name "E. E. Young & Son" was attached thereto; that E. E. Young called, a few days later, and, in the course of a conversation, remarked that he did not understand why they arrested Thomas, as he never had a cent, and they could not get anything out of him; that to this the witness responded that he had an automobile, and appellant said, "No," the automobile belonged to him; that appellant paid the charges on the car, and, upon the suggestion that the witness repair the car, declared that he and his son operated a garage at Palo, and that he would repair it in his own garage. The witness swore that they conducted business under the name of Young & Son. Lightner, a justice of the peace, related that appellant left a memorandum at his office that they were conducting a garage at Palo; that Thomas was not worth anything, but had a large family; that, if he didn't get to work at some trade, he would put him on a farm. On the other hand, appellant swore that, in 1914, he was selling the King car in his garage at Palo; that Thomas lived in a rented house in Palo that year; that he told Thomas he could go in and have full access to the blacksmith shop in the garage and make what he could; that "that was his own business, he [Thomas] was not having anything to do with the garage at all;" that they were not interested in the business of each other; that the witness had two cars; that he was not engaged in trading cars, but Thomas traded and sold cars when he wanted to; that the automobile in question was an "E. M. F.," which Thomas had obtained from one Stark, by paying $ 37.50 difference between that and another car, and that the witness had no interest in it; that each carried a key to the garage; that Thomas had not driven either of the witness' automobiles during the year; that the demonstration number was taken out in December preceding the accident, but he did not know it was in the name of E. E. Young & Son, and such a firm did not use it; that it was so taken out so that either one might use it; that, when having nothing...