Hunt v. Whitlock's Administrator

• Decision Date: 30 April 1935
• Citation: 259 Ky. 286
• Parties: Hunt v. Whitlock's Administrator. Same v. Coyle. Same v. Lane.
• Court: United States State Supreme Court — District of Kentucky

259 Ky. 286

Hunt v. Whitlock's Administrator.

Same v. Coyle.

Same v. Lane.

Court of Appeals of Kentucky.

Decided April 30, 1935.

1. Automobiles. — "Unavoidable accident' is synonymous with "inevitable accident," as used in automobile collision cases, and

means an unforseen and unexpected event occurring externally to person affected by it, and of which his own agency is not the proximate cause.

2. Automobiles. — Failure of motorist to keep to right side of center of highway is excused where, without fault on his part, vehicle skids across center line, but where its skidding results from his negligence, doctrine of unavoidable accident may not be invoked to exempt liability for consequences.

3. Automobiles. — Skidding of motor vehicle is not ordinarily, in itself, evidence of negligence where motor vehicle skids across center line of road to left side and collides with another, but burden is upon driver on wrong side of road to excuse or justify violation of law of road.

4. Automobiles. — In actions for injuries sustained in automobile collision, defendant motorist's speed of 60 to 75 miles an hour antecedent to and at moment of collision held negligent in view of wet and slippery condition of highway.

5. Automobiles. — Same rate of speed of motorist may be negligent under some circumstances and not negligent under others, since degree of care required is measured by obligations and situation of occasion.

6. Automobiles. — As respects liability of motorist for injuries caused by excessive speed, propriety of any rate cannot be fixed at any definite number of miles per hour.

7. Automobiles. — In actions for injuries sustained in automobile collision, evidence showing that defendant motorist was traveling from 60 to 75 miles an hour, and that driver of plaintiff's automobile had driven to extreme right of highway and stopped, held to sustain finding that defendant's negligence was proximate cause of death and injuries.

8. Automobiles. — Liability of alleged employer of driver and owner of automobile to persons injured by negligent operation of automobile by driver was determinable by law of agency.

9. Automobiles. — In actions for injuries sustained in automobile collision, driver of defendant's automobile, being engaged in performing errand for defendant at time of collision, held acting within course and in scope of his employment, although defendant had given driver key to Ford automobile, but driver, conceiving Ford automobile had insufficient gas, had used defendant's Dodge automobile.

10. Appeal and Error. — In actions for injuries sustained in automobile collision, appellate court could not disturb jury's finding upon conflicting evidence that defendant was owner of automobile driven by person whose negligence caused collision.

Appeal from Boyle Circuit Court.

C.C. BAGBY, HENRY JACKSON and ADD LANIER for appellant.

JAY W. HARLAN and SANDERS E. CLAY for appellees.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

To recover damages for the death of O.J. Whitlock, the administrator of his estate brought an action against Frank M. Hunt and E.R. Holtzclaw, partners doing business under the firm name of Hunt & Holtzclaw, and Frank M. Hunt, individually. James Coyle and Albert Lane also instituted their separate actions against them to recover damages for injuries they had respectively sustained in the same accident.

They were consolidated and tried as one. The issues were formed by appropriate pleadings, and, on a trial to a jury, a verdict was returned against Hunt in favor of Whitlock's administrator for $5,785; Coyle, $1,690.50, and Lane, $304. The court directed a verdict for the firm of Hunt & Holtzclaw, and Holtzclaw, individually. The appeal against Whitlock's estate and Coyle was granted by the circuit court, and a motion for an appeal as to Lane has been entered herein. No cross-appeal has been requested or granted; therefore, we shall consume neither time nor space to consider the ruling of the court granting the peremptory instruction.

Hunt argues in his brief that the evidence does not establish the relation of master and servant between him and Gloyd Miller, the chauffeur of the Dodge car, which, it is charged by the negligence of Miller, collided with Whitlock's car, resulting in his death and the injuries of Coyle and Lane. And if such relation existed between them, it had been abandoned by Miller before the accident happened. He contends that the instruction defining the statutory duties of Miller erroneously fails to embrace all of the language of the statute in relation thereto. Also, this instruction destroys the "fourth instruction on skidding." He insists that the evidence discloses that the Dodge car skidded and thereby was caused to collide with that of Whitlock. He further contends the instructions are confusing and there was no evidence authorizing an instruction on "the implied authority" of Miller.

To determine whether the relation of master and servant existed between Hunt and Miller at the time of the accident, as well as the criticism of the instructions, requires a reproduction of the salient substance of the evidence.

Hunt and Holtzclaw were partners engaged in conducting a grocery store; Hunt at the same time owning and operating a farm. Howard Hunt, a son of Frank Hunt, resided at the home of his father and engaged in trucking; Gloyd Miller operated his truck, and, while doing so, made his home at Frank Hunt's. When not engaged in operating the truck, Miller did chores about the home of Frank Hunt. One Carey, previous to the accident, had rented and cultivated Frank Hunt's farm, during which time he purchased groceries of the firm of Hunt & Holtzclaw, for which he had executed a note payable to them for something over $400. Failing to pay it, the firm filed suit against him and caused an attachment to be issued and levied on his portion of a tobacco crop which he had grown on the farm of Frank Hunt. In the action, Carey filed an answer and counterclaim seeking to recover of Frank Hunt, individually, an account arising out of transactions between them while he was occupying, as tenant, Hunt's farm. On the morning the case was set for trial on the issue made on Carey's account, Frank Hunt, in a Ford car, with Gloyd Miller, left home and went to the courthouse. On the calling of the case for trial, conceiving that he needed Guy Hunt, his nephew, as a witness to defeat Carey's counterclaim, Hunt called Gloyd Miller to him, delivered him the keys to the Ford car and directed him "to go and bring" to the courthouse, Guy Hunt. Some of the witnesses say that...