Lieber v. Messick

• Decision Date: 07 November 1930
• Docket Number: No. 13929.,13929.
• Citation: 173 N.E. 238,92 Ind.App. 264
• Parties: LIEBER v. MESSICK.
• Court: Indiana Appellate Court

92 Ind.App. 264

173 N.E. 238

LIEBER

v.MESSICK.

No. 13929.

Appellate Court of Indiana, in Banc.

Nov. 7, 1930.

Appeal from Municipal Court, Marion County; Thomas E. Garvin, Judge.

Action by John Messick against Robert Lieber, deceased, and others. Judgment for plaintiff against defendant named, and Clara Louise Lieber, executrix of the estate of Robert Lieber, deceased, appeals.

Affirmed.

Bingham, Mendenhall & Bingham, of Indianapolis, for appellant.

Slaymaker, Merrell, Ward & Locke, of Indianapolis, for appellee.

REMY, J.

George Middleton was employed by Robert Lieber to act as chauffeur for Lieber and his family during certain daylight hours of each day, for which services he was to, and did, receive a weekly wage. Middleton was also regularly employed by Edwin R. Klug as night foreman at the latter's garage, where his hours of employment were from 7 o'clock in the evening till 7 o'clock in the morning of the next day. Lieber was a patron of the Klug garage in which the Lieber automobile was kept and cared for when not in use. Klug was carrying no employers' liability insurance, for which reason he directed his employees not to do chauffeur work for customers. During the day of February 11, 1929, and while Middleton was working for Lieber, Lieber requested him to come to his home that evening with the Lieber automobile to take them to the theater; and, in compliance with the request, Middleton at about 8 o'clock, did go and take Lieber and his wife to the theater, at which time Middleton was directed by Lieber to call for them “after the performance was over,” and take them home. At the time fixed, and in compliance with Lieber's directions, Middleton started from the garage driving the Lieber car, and on the way ran into and damaged an automobile belonging to John Messick, appellee herein. Thereupon Messick began this action against Lieber, Klug, and Middleton to recover damages sustained by their alleged negligence. A trial, at which the above facts were established by the evidence, resulted in a finding and judgment against Lieber only, from which this appeal is prosecuted by Lieber's legal representative, he having died before the appeal was perfected.

The sufficiency of the evidence to sustain the decision of the court is the only question presented, and the one question is whether, under the evidence, Middleton was the agent of Lieber at the time of the collision with the Messick automobile. It is urged by appellant that Middleton could not have been the employee and agent of Lieber at the time, for the reason that it was 10 o'clock at night, and was during that period of the day covered by Middleton's employment by Klug.

[1] It is not the law, as assumed by appellant, that one in the general employment of another may not while so employed become...