Lee v. Layton

• Decision Date: 01 August 1929
• Docket Number: No. 13486.,13486.
• Parties: LEE v. LAYTON.
• Court: Indiana Appellate Court

95 Ind.App. 663

167 N.E. 540

LEE

v.LAYTON.

No. 13486.

Appellate Court of Indiana, in Banc.

Aug. 1, 1929.

Appeal from Municipal Court of Marion; Thos. Mervin, Judge.

Action by David Layton against Frank J. Lee. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank Mellis, of Indianapolis, for appellant.

Wicker & Cayton, of Indianapolis, for appellee.

PER CURIAM.

Action for damages to appellee's automobile caused by a collision between the automobiles of appellant and appellee.

It is averred in the complaint that appellee was the owner of a Hupmobile sedan that was operated by his wife about 6 o'clock in the evening of December 16, 1928; that she was making a left-hand turn around the semiphore when she first saw a motorcycle without lights, and stopped; that appellant negligently operated an automobile at an unlawful speed of 35 miles an hour without having it under control, and attempted to cut the corner of the intersection to make a left turn north into Meridian street, Indianapolis, without circling around the center of the intersection, in violation of section 759, par. D, of the municipal code, which prohibits left-hand turns without circling around the center of the intersection, thereby colliding with appellee's automobile through no fault of his or his wife, and praying for $500 damages.

To the complaint, appellant filed an answer in general denial. There was a trial by jury which resulted in a verdict assessing $250 damages in favor of appellee, and judgment followed.

The error assigned is the court's action in overruling appellant's motion for a new trial, under which the insufficiency of the evidence, excessive damages, and errors in giving instructions tendered by appellee, and in refusing to give instructions tendered by appellant are presented.

The one substantial question which is presented pertains to the alleged errors presented as to the instructions; the question being as to whether the negligence of a wife in operating her husband's automobile will be imputed to him so as to defeat his recovery against negligent third parties for damages to his automobile without showing that the wife was acting as the agent of the husband at the time of the accident. In this case there is no contention that the wife was so acting as agent, and the evidence shows that she was simply the gratuitous bailee of appellee.

That it was held in a majority of the earlier cases that the contributory negligence of the bailee was imputable to the bailor, where the subject of the bailment was damaged by a third person, is apparent. The following cases so holding serve to illustrate: Smith v. Smith (1824) 2 Pick. (Mass.) 621, 13 Am. Dec. 464;Illinois, etc., R. Co. v. Sims (1899) 77 Miss. 325, 27 So. 527, 49 L. R. A. 322;Puterbaugh v. Reasor (1859) 9 Ohio St. 484;Forks Township v. King (1876) 84 Pa. 230;Texas, etc., R. Co. v. Tankersley (1885) 63 Tex. 57;Duggins v. Watson, 15 Ark. 118, 60 Am. Dec. 560. But the weight of authority in the later cases is decidedly in favor of the rule that the contributory negligence of the bailee is not imputable to the bailor so as to preclude his recovery of damages from a third person for negligently injuring the bailor's property. The following cases so hold: Alabama, etc., R. Co. v. Clarke, 145 Ala. 459, 39 So. 816;Bradley v. Ashworth, 211 Ala. 395, 100 So. 663;Missouri, etc., R. Co. v. Boyce, 168 Ark. 440, 270 S. W. 519;Currie v. Consolidated R. Co., 81 Conn. 383, 71 A. 356;Bower v. Union, etc., R. Co., 106 Kan. 404, 188 P. 420;Guthrie v. Missouri, etc., R. Co. (Mo. App.) 279 S. W. 210;Norton v. Hines Director Gen., 211 Mo. App. 438, 245 S. W. 346;Stoeckle v. St. Louis, etc., R. Co., 214 Mo. App. 124, 258 S. W. 58;Cain v. Wickens, 81 N. H. 99, 122 A. 800, 30 A. L. R. 1246;Lloyd v. Northern Pac. R. Co., 107 Wash. 57, 181 P. 29, 6 A. L. R. 307;Gibson v. Bessemer, 226 Pa. 198, 75 A. 194, 27 L. R. A. (N. S.) 689, 18 Ann. Cas. 535;Aldrich v. Boston, etc., R. Co., 91 Vt. 379, 100 A. 765;New York, etc., R. Co. v. New Jersey, etc., R. Co., 60 N. J. Law, 338, 38 A. 828, 43 L. R. A. 849;Kellar v. Shippee, 45 Ill. App. 377;Sea Ins. Co. v. Vicksburg, etc., R. Co. (C. C. A.) 159 F. 676, 17 L. R. A. (N. S.) 925;Morgan County v. Payne Direc. Gen., 207 Ala. 674, 93 So. 628, 30 A. L. R. 1243;Oster v. Chicago, etc., R. Co. (Mo. App.) 256 S. W. 826;Tobin v. Syfrit, 2 W. W. Harr. (Del.) 274, 122 A. 244.

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