John J. Radel Co. v. Borches

• Decision Date: 13 March 1912
• Citation: 147 Ky. 506,145 S.W. 155
• Parties: JOHN J. RADEL CO. v. BORCHES.
• Court: Kentucky Court of Appeals

145 S.W. 155

147 Ky. 506

JOHN J. RADEL CO. v. BORCHES.

Court of Appeals of Kentucky.

March 13, 1912

Appeal from Circuit Court, Campbell County.

Action by Christine Borches against John J. Radel Company. Judgment for plaintiff, and defendant appeals. Reversed.

Dempsey & Nicberding, for appellant.

Ramsey Washington and Howard M. Benton, for appellee.

WINN J.

The appellant is an undertaking concern. On October 5, 1910, it conducted the funeral of one John Lickert. The appellee attended the funeral. Upon the return trip from the cemetery the driver of the carriage in which appellee was riding, at the direction of one of the occupants of the carriage stopped in front of the Heidelburg Café. The two men occupants left the carriage and went inside the café. The driver wrapped his lines about the brake and went in also. The team ran away. Mrs. Borches jumped or was thrown from the carriage, and brought her action against the undertaking company to recover for the injuries which she claimed to have received. She recovered a judgment for $597, and the undertaking company appeals.

The plaintiff alleged that the Radel Company had charge of the funeral; that she went to the funeral in a carriage furnished by defendant for that purpose; that the carriage was managed and under the control of defendant, its agents and employés and that by reason of their negligence in leaving the horses unfastened and unattended the runaway and her injuries occurred. The answer did not deny that defendant furnished the carriage, but did deny that it was under the control of the defendant, its agents or employés, or that they were guilty of any negligence, or that the injury occurred. The evidence upon the plaintiff's side, of the facts about the furnishing of the carriage, is, in substance, that plaintiff attended the funeral as a relative of the decedent; that she was put into this carriage by a representative of the Radel Company; that a burial association of which decedent was a member had furnished, through the Radel Company, three carriages for the funeral; that the decedent's sister ordered three extra carriages from a representative of the Radel Company; that it was in one of these extra carriages that plaintiff was at the time of her injury; that the bill had been made out by the Radel Company against the estate of the decedent for the extra carriages, and had been paid by the decedent's sister. The evidence upon defendant's side upon this question is, in substance, that these carriages were hired for the funeral; that they were hired by a representative of the Radel Company from the Queen City Livery Company, an independent concern; that the Radel Company kept no carriages; that it had no control over the carriage driver; that the livery company sent the carriages, under orders from the undertaker, to the house, thence to the cemetery, and thence back to the house.

We think it clear that, in arranging for the transportation of the decedent's relatives and family, the undertaking company owes the same contract obligation to each of them, though it may not know, save in the most general way, the number and names of those who are to be transported. It is a matter of common knowledge that, in the distressing surroundings of this nature, some one of the family, or some friend of the family, acts for all; and it is right that the obligations, whatever they may be, assumed or owed by the undertaker, should be held as contract obligations owed to all. The facts stated above, as appearing upon the two sides, are not in conflict. But the divergence of position comes in that the plaintiff insists that since the carriages were ordered of the undertaking concern and supplied by it, it, in effect, was the liveryman, and is answerable to the plaintiff not otherwise than as if the carriages had been its own; while the defendant's position is that the carriage was furnished by an independent contractor, the livery company, and that defendant is not responsible for any negligence of the independent concern's servants or agents.

The error in the Radel Company's conception of its case lies in its misunderstanding of the facts. Under the evidence, it undertook to supply the carriages. There is no evidence that in supplying them it was only to act as agent in procuring them, or that they were to be supplied by another or independent contractor, or that it was so understood by those to whom the carriages were to be supplied. Nor was the injury suffered by any third person, as against whom the fact of the independent service could be shown. The rule is clear beyond argument that one who undertakes by contract to do for another a given thing cannot excuse himself to the other for a faulty performance, or a failure to perform, by showing that he has engaged another to perform in his place, and that the fault or failure is that of another or independent contractor. It would be different, of course, if it were shown that the substituted performance, the engaging of another to perform, was with the knowledge and acquiescence of the one with whom he undertook his contract obligation. If it were shown here, to illustrate, that either the plaintiff, or the member of the family who engaged the carriages, knew that the Radel Company would not supply the carriages, or understood or assented that they were to be supplied by another, then the plaintiff's claim would be against that other, unless it should be shown by the evidence, as it was not, that the complete direction, authority, and control of the carriage and its owner were surrendered for the time being to the Radel Company.

The state of fact just supposed, i. e., that it was understood in the contract with the Radel Company that the carriages were in fact to be supplied by another under a hiring by it, would bring the case within the rule argued by appellant that, in an ordinary hiring from a livery company, the hirer, who exercises no control over the driver further than the right to generally direct where to go, is not the master so as to render him liable in damages to a third person for injuries received through the negligence of the driver of the vehicle. The appellant's trouble in this respect, as above pointed out, lies in that the plaintiff was not a "third person"; per contra, she was a party to the contract made with the Radel Company where, in so far as the evidence upon the trial disclosed, that company itself was to furnish the carriages. The notes to Frerker v. Nicholson, 13 L.R.A. (N. S.) 1122, illustrate the distinction. The case to which the notes are appended seems to us to be unsound as applied to the facts at bar, in that it treats the occupant of the carriage as a third person, and not as one entering into the contractual relation with the inherent...