Haynes v. Stroh, 14840.

• Decision Date: 24 January 1935
• Docket Number: No. 14840.,14840.
• Citation: 193 N.E. 721,99 Ind.App. 595
• Parties: HAYNES v. STROH et al.
• Court: Indiana Appellate Court

99 Ind.App. 595

193 N.E. 721

HAYNES

v.STROH et al.

No. 14840.

Appellate Court of Indiana, in Banc.

Jan. 24, 1935.

Appeal from De Kalb Circuit Court; B. J. Bloom, Special Judge.

Suit by Arthur E. Stroh against Arthur J. Haynes and another. From an adverse judgment, the named defendant appeals.

Judgment as to appellant reversed with instructions.Rex S. Emerick, of Kendallville, for appellant.

Atkinson & Husselman, of Auburn, and Howard W. Mountz, of Garrett, for appellees.

KIME, Judge.

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 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 o'clock a. m. During the wintertime 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 o'clock p. m. with the feeding of the horses.

Some time prior to the date of the accident, namely, May 7, 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.

[1][2] On the day of the accident, which was Sunday, appellee Smith had finished his day's work around 2 o'clock p. m. and had driven this truck for his own convenience only and without his employer's knowledge or consent and parked it in front of the rooming house where he...