Hunt v. Whitlock's Adm'r

• Decision Date: 30 April 1935
• Citation: 259 Ky. 286,82 S.W.2d 364
• Parties: HUNT v. WHITLOCK'S ADM'R. SAME v. COYLE. SAME v. LANE.
• Court: Kentucky Court of Appeals

82 S.W.2d 364

259 Ky. 286

HUNT v. WHITLOCK'S ADM'R.

SAME v. COYLE.

SAME v. LANE.

Court of Appeals of Kentucky

April 30, 1935

Rehearing Denied June 11, 1935.

Appeal from Circuit Court, Boyle County.

Three separate actions by O. J. Whitlock's administrator, by James Coyle and by Albert Lane against Frank M. Hunt and E R. Holtzclaw, partners doing business under the firm name of Hunt and Holtzclaw and Frank M. Hunt, individually. Judgment for each plaintiff as against Frank M. Hunt, individually and from the judgments granted O. J. Whitlock's administrator and James Coyle, Frank M. Hunt appeals, and from the judgment granted Albert Lane he moves for an appeal.

Motion for an appeal as to Albert Lane denied, and all judgments affirmed.

C. C Bagby, Henry Jackson, and Add Lanier, all of Danville, for appellant.

Jay W. Harlan and Sanders E. Clay, both of Danville, for appellees.

RICHARDSON Justice.

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 in giving directions to Miller, he said: "Go and come." Miller, with the keys, departed, and on leaving the courthouse he met Howard Hunt. Conceiving the Ford car did not contain sufficient gas to make the trip and return, Miller delivered the key to the Ford to Howard Hunt and received from him the key to a Dodge car. He secured the Dodge and began his journey. On the way the Dodge collided with Whitlock's, in which he, Coyle, and Lane were traveling, on the highway. A number of witnesses were present at, and in sight of, the collision. They deposed that Miller was traveling from 60 to 75 miles an hour, when Whitlock, observing his approach, operated his car to the right and brought it to a stop at a fence. The highway at this point was straight and unobstructed for several hundred feet and while Miller's car was covering this distance, he was operating it to the left and to the right of the center of the highway, and back and forth, and while it was so zigzagging it ran into the front of Whitlock's car, instantly killing him, seriously injuring Coyle and more or less injuring Lane.

Explanatory of his so operating the car, Miller claims the highway was wet and slippery and this caused his car to skid. Upon this claim, Hunt, to exempt himself of liability, invokes the principles of "unavoidable accident."

This term is synonymous with "inevitable accident," and as used in a case of this kind, means "an unforeseen and an unexpected event...