Kennedy v. Wolf

• Citation: 221 Ky. 111,298 S.W. 188
• Parties: KENNEDY v. WOLF.
• Decision Date: 17 June 1927
• Court: Court of Appeals of Kentucky

298 S.W. 188

221 Ky. 111

KENNEDY v. WOLF.

Court of Appeals of Kentucky.

June 17, 1927

Rehearing Denied Oct. 21, 1927.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Mary Eileen Kennedy, through her next friend, against Ella Wolf and husband. From a judgment on a directed verdict for the named defendant, plaintiff appeals. Affirmed.

Robert Hubbard and John L. Sullivan, both of Louisville, for appellant.

John P Haswell, of Louisville, for appellee.

TURNER C.

The sole question on this appeal is whether appellee Ella Wolf the wife of John B. Wolf, and the owner of a motorcar which at the time was being driven by her husband in her absence is liable under the "family purpose" doctrine for his negligent injury inflicted upon appellant.

The facts are that appellee and her husband lived together in Louisville, and that she was the owner of and kept at their home a touring car. There lived with them her young daughter by a former marriage, who went to school. They apparently lived in the outskirts of the city, and some distance from the school the child attended, and some distance from his place of business. He operated a butcher business, and in addition to the car owned by his wife he had a truck, which he owned and operated in connection with that business.

The car owned by the wife was kept and used for general family purposes, such as the taking of pleasure drives and in going to and from the homes of their friends upon visits. In addition to such use, however, the husband frequently used the car in going to and from his business, and to and from other places to which he went, when not accompanied by his wife or her child. While he frequently used his truck in going to and from his place of business, he without special permission often used her car for such purpose, and upon such occasions never asked for her specific permission. In other words, he used her touring car whenever it suited his purposes, without asking her, and apparently with her acquiescence and general permission. Many times, whether using the one car or the other, he would take her child to the school she attended, or to a point where she could take the street car. In short, he appears to have used her car, without asking special permission, whenever he wanted to, although upon rare occasions she would request him not to use her car that day, as she expected herself to use it. However, he always used her car in going to and from his business on Wednesdays and Saturdays.

On the morning of November 12, 1924, John B. Wolf left his home in his wife's car, accompanied by his stepdaughter; it was about 8 o'clock, or shortly theretofore, when he left home, and at about 8, or soon thereafter, he left the child at her school, and proceeded thence to some other part of the city of Louisville, and did not go directly to his place of business. He continued for purposes of his own to remain in sections of the city some distance from his home and his place of business until about 11:20 or 11:30, when he again got in the car and started to his place of business. About 11:40 or 11:45, while he was thus proceeding, he ran over and severely injured the infant appellant.

This is an action by such infant, through her next friend, against both Wolf and his wife, seeking against them jointly and severally a judgment in damages because, as alleged, her said injuries resulted from his negligence, and this is an appeal from a judgment on a directed verdict for the wife. It is not disclosed the nature of John B. Wolf's activities down in the city during the period of approximately 3 1/2 hours from the time he left his stepdaughter at her school until he started to his place of business; but it is convincingly shown that, when the accident happened, he was then on the way to his place of...