Haynes v. Stroh

• Decision Date: 24 January 1935
• Docket Number: 14,840
• Citation: 193 N.E. 721,99 Ind.App. 595
• Parties: HAYNES v. STROH ET AL
• Court: Indiana Appellate Court

193 N.E. 721

99 Ind.App. 595

HAYNES v. STROH ET AL

No. 14,840

Court of Appeals of Indiana

January 24, 1935

From DeKalb Circuit Court; B. J. Bloom, Special Judge.

Action by Arthur E. Stroh against Arthur J. Haynes and another for personal injuries. From a judgment for plaintiff, the named defendant appealed.

Reversed.

R. S Emerick, for appellant.

Arkinson & Husselman, and Howard W. Mountz, for appellees.

OPINION

KIME, J.

Suit was brought by appellee, Stroh, against appellant and appellee, Smith, to recover damages for the death of Stroh's minor son, whose death was alleged to have resulted by reason of the negligence of appellant, Haynes and his employee, appellee Smith. To the complaint there was filed a general denial by both of the defendants. The cause was submitted to a jury for trial, which returned a verdict in the sum of $ 1,000.00 upon which judgment was rendered against $ 1,000.00 upon which judgment was rendered against both defendants. Following a motion for a new trial this appeal was prosecuted, properly assigning as error the overruling of the motion for a new trial, because the verdict was not sustained by sufficient evidence and that it was contrary to law.

The evidence discloses that Smith was employed by Haynes to commence work at about 3:00 o'clock A. M. During the winter time Smith commenced his work at this hour by going to a garage in the city of Auburn and securing a truck, which he drove to his employer's place of business, whereupon he harnessed horses, delivered milk in the city of Auburn and then took the truck in question and collected milk throughout the countryside. His day ordinarily ended about 3:00 o'clock P. M. with the feeding of the horses.

Sometime prior to the date of the accident, namely, May 7th, 1928, they had ceased keeping the truck in the garage, because it was no longer necessary to do so on account of cold weather and the car was then kept at the home of the appellant. It was not a part of the appellee Smith's duty to take the car from the appellant's home to his place of business, but it was appellee's duty to report directly to the barns where horses were kept for the purpose of harnessing them for the day's work.

On the day of the accident, which was Sunday, appellee Smith had finished his day's work around 2:00 o'clock P. M. and had driven this truck for his own convenience only and without his employer's knowledge or consent and...