Malcolm v. Poland
| Decision Date | 21 March 1939 |
| Citation | 277 Ky. 512 |
| Parties | Malcolm v. Poland et al. |
| Court | United States State Supreme Court — District of Kentucky |
3. Appeal and Error. — Exercise of trial court's discretion in granting separate trials to defendants jointly sued for tort will not be disturbed on appeal unless there has been abuse.
4. Appeal and Error. — Where separate trials to defendants jointly sued for tort have been granted, judgment will not be reversed merely because of the severance where it is manifest that the substantial rights of none of the parties were prejudiced.
5. Appeal and Error. — Under statutes providing that no judgment shall be reversed except for prejudice to substantial rights of party complaining, judgment will not be reversed because severance was granted tort-feasors jointly sued where substantial rights of parties have not been prejudiced and rule does not now obtain that judgment should be reversed unless it affirmatively appears of record that severance was authorized (Civil Code of Practice, secs. 338, 756).
6. Trial. — In guest's action against alleged co-owner of truck for injuries sustained when truck collided with automobile, granting alleged owner a trial separate from other codefendants was not error where it was alleged owner had no interest in truck except that he held mortgage against it to secure some indebtedness and had no control over the operation of truck (Civil Code of Practice, sec. 83).
7. Automobiles. — In guest's action against alleged co-owner of truck for injuries sustained when truck collided with automobile where evidence gave rise to reasonable inference that co-owner may have had some interest in venture with driver to whom owner allegedly lent and surrendered possession and control of truck, it was error to peremptorily instruct jury to find for co-owner.
Appeal from Boone Circuit Court.
F.A. HARRISON for appellant.
H.W. ALEXANDER for appellees.
Before J.G. Vallandingham, Judge.
Affirming in part and reversing in part.
Henry Lew Malcolm, an infant, by his father, I.M. Malcolm, as next friend, brought this action against Morris Poland, Cad Rose, Ren Pendleton, and John Dempsey, seeking to recover damages for personal injuries sustained as the result of a collision between a truck and an automobile. It is alleged in substance in the petition that the truck was owned by Cad Rose and Ren Pendleton and that Morris Poland was their agent and the driver of the truck; that plaintiff's father had contracted with Rose and Pendleton to haul his household goods from Carroll county to Grant county and they had furnished their truck and driver for that purpose; that while so transporting such goods and while plaintiff was a passenger on the truck, it and an automobile owned and driven by John Dempsey through the concurrent negligence of Poland and Dempsey were caused to come into collision and as a result thereof plaintiff sustained the injuries complained of.
By separate answer John Dempsey in a first paragraph traversed the allegations of the petition and in a second paragraph pleaded contributory negligence upon the part of plaintiff. By separate answer Cad Rose denied the material allegations of the petition as against him and alleged that he knew nothing about the collision complained of; that he was not the owner of the truck and had no interest therein except that he had a mortgage on same given him by Ren Pendleton on October 4, 1934, to secure the payment of a debt of $400 due and owing him by Pendleton; that no employee, agent or servant of his was operating the truck at the time of the collision.
By separate answer defendant Ren Pendleton denied the material allegations of the petition as against him. In a second paragraph he alleged in substance that on the day of the collision and prior thereto he met Morris Poland who informed him that he had a contract to move a family from Carrollton to Dry Ridge but that his truck was in a garage for repairs and that the family he had contracted with wished to be moved that day; that he at the request of Poland agreed to and did lend him his truck to move the family; that Poland got in the truck with him and drove it to the home of appellant's father and after the household goods were loaded on some wheat which the answering defendant was hauling, Poland, plaintiff's mother and her small child got in the cab of the truck and plaintiff, his father and the answering defendant got in the truck and rode on the wheat; that while going east and traveling at a speed not in excess of 30 miles per hour and when nearing Duck Head Inn, John Dempsey, who was approaching in his automobile from the opposite direction suddenly and without signal or warning turned his car to the left and directly into the path of the truck when so near thereto that Poland was unable to stop the truck or to avoid striking it; that the direct and proximate cause of plaintiff's injuries was the gross negligence and carelessness of Dempsey in suddenly turning his car directly into the path of the truck; that at the time of the collision the truck was not being operated by him or by Poland, as his agent or servant, or on any business for him; that he had lent the truck to Poland who at the time of the collision and accident was operating same by a contract with and in the service of and under the direction of plaintiff's father. In a third paragraph he alleged that plaintiff and his father who was with him were guilty of contributory negligence.
The only other pleading found in the record is a reply traversing the allegations of the second paragraph of the answer of John Dempsey. On the day the case was called for trial Cad Rose and Ren Pendleton moved the court that they be granted separate trials from that against John Dempsey and the court sustained the motion and ordered that the cases be heard against Rose and Pendleton and then against other defendants in separate trials, to which ruling plaintiff objected and excepted and plaintiff being required to elect which of the cases he would try first elected to first try the case against Rose and Pendleton. At the conclusion of the testimony for plaintiff, the court upon motion of the defendants,...
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