Keen v. Army Cycle Mfg. Co.
| Decision Date | 16 May 1923 |
| Docket Number | 11234. |
| Citation | 117 S.E. 531,124 S.C. 342 |
| Parties | KEEN v. ARMY CYCLE MFG. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Charleston County; Edward McIver, Judge.
Action by George Keen against the Army Cycle Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Hagood Rivers & Young, of Charleston, for appellant.
Logan & Grace and John I. Cosgrove, all of Charleston, for respondent.
Action for $10,000 damages, on account of personal injuries sustained by the plaintiff, a pedestrian, in being struck by an automobile, owned by the defendant and being driven by a colored man, Isaiah Hutchinson, claimed to have been an employee of the defendant, in the discharge of his duties as such, on the streets of Charleston, July 11, 1920, alleged to have been caused by the negligence, recklessness, and wantonness of the defendant, its agents, and servants. The defendant, in its answer, denied the material allegations of the complaint and pleaded contributory negligence of the plaintiff.
The case was tried in January, 1922, before Circuit Judge McIver and a jury, resulting in a verdict of $2,750 actual damages in favor of the plaintiff. The defendant made motions for nonsuit, directed verdict and new trial, upon grounds which sufficiently appear hereinafter, all of which were refused. From the judgment entered upon the verdict the defendant appeals upon the grounds:
(1) Error in admitting the alleged declarations of Isaiah Hutchinson, in reference to his employment by the defendant testified to by Sergeant Garbene, of the police force.
(2) Error in refusing motion for nonsuit, made upon the ground that there was no evidence tending to show that Isaiah Hutchinson was an agent or servant of the defendant, acting within the course of his employment.
(3) Error in refusing motion for a directed verdict, made upon the ground that Isaiah Hutchinson stole the car, which was securely locked, from the defendant, and was using it at the time about his own business or pleasure.
(4) Error in refusing motion for new trial unless the plaintiff would reduce the verdict to $850, the value of the car, upon the ground that there is no evidence to show that Isaiah Hutchinson was acting within the course of his employment at the time of the collision.
As to the first ground: There was no controversy in the case as to the negligence of the driver of the car, Isaiah Hutchinson, or of the serious injuries sustained by the plaintiff. The battle ground was the agency of Hutchinson and the consequent liability of the defendant for his conduct.
It appears from the testimony of Garbene, a traffic officer on the police force, that after the accident, a subp na was issued requiring the attendance of a Mr. Rast, the president and manager of the defendant company; Mr. Rast appeared in court and had the case continued; later he...
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...of property of the owner, and who uses it in the service of the owner, is presumptively a servant of the owner." In the Keen Case, 124 S.C. 342, 117 S.E. 531, the quotation from the Osteen Case was approved, and so in the Williamson Case. The declarations as part of the res gestæ being elim......
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... ... circumstances of the case. Keen v. Army Cycle Co., ... 124 S.C. 342, 117 S.E. 531; Davis v ... ...
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