Neff v. Brandeis

• Decision Date: 12 March 1912
• Docket Number: 16,584
• Citation: 135 N.W. 232,91 Neb. 11
• Parties: ELIZABETH A. NEFF, APPELLEE, v. EMIL BRANDEIS, APPELLANT
• Court: Nebraska Supreme Court

135 N.W. 232

91 Neb. 11

ELIZABETH A. NEFF, APPELLEE, v. EMIL BRANDEIS, APPELLANT

No. 16,584

Supreme Court of Nebraska

March 12, 1912

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Reversed.

REVERSED.

Greene Breckenridge & Matters, for appellant.

W. J Connell and Walter P. Thomas, contra.

BARNES, J. LETTON, J., concurs in the conclusion.

OPINION

BARNES, J.

Action in the district court for Douglas county by Elizabeth A. Neff against Emil Brandeis and Arthur Brandeis to recover damages alleged to have been sustained by the plaintiff as the result of a collision with an automobile of which Emil Brandeis was the owner. There were two trials in the district court. On the first trial the jury were directed to return a verdict in favor of the defendant Arthur Brandeis, and upon the question of the liability of Emil the jury disagreed. On the second trial the plaintiff had the verdict and judgment, and the defendant Emil Brandeis has appealed.

It appears that in April, 1906, Emil Brandeis was the owner of two automobiles, one of which was called the "White Steamer," which was kept for him by the Powell-Bacon Automobile Company of Omaha, Nebraska, under an agreement which was described by Mr. Powell in substance, as follows: I was to wash the machine, polish it, store it, and keep it ready for running at all times. I was to furnish a man any time Mr. Brandeis might call for it. Mr. Brandeis was to pay me so much a month for storing the machine, washing it, keeping it in good shape, and was also to pay me a stated sum for the man. Mr. Brandeis could call on the man--for that man--any time of day or night, and keep him as long as he wanted him. Mr. Brandeis said that he did not want to have the care of a man, to keep his eye on him all the time, and he would prefer to pay me a certain sum per month, with the understanding that I should keep the man at work, but have him subject to his call. I told Mr. Brandeis that I was perfectly willing to do that; that a man would be at his call and disposal at any time he should telephone or give instructions to have him sent out. The defendant corroborated this statement, and further testified as follows: "Q. Who furnished the chauffeur that drove your cars on April 15, 1906, and prior to that time? A. The Powell- Bacon Automobile Company. Q. Did you have some agreement or arrangement under which the chauffeurs were furnished by them? A. Yes, sir. Q. What was it? State what was said as nearly as you can. A. I kept my automobiles at the Powell-Bacon garage. They looked after them in the way of furnishing oil and gasoline, and repairs and extras, and furnishing chauffeurs whenever I wanted to use the cars. Q. How much did you pay? A. $ 80 a month.

It appears from the record that on the 15th day of April 1906, the defendant loaned his automobile to his brother, Mr. Arthur Brandeis; that he did not use or even see his car on that day. Defendant also testified as follows: "Q. Who did use it, if you know? A. My brother. Q. Your brother, which one, A. D.? A. A. D. Q. That is Arthur Brandeis? A. Yes, sir. Q. State whether that car was used at all or out for your personal pleasure or business. A. No. sir. * * * Q. How did your brother Arthur happen to be using this machine on this particular day in question? A. Well, he asked me, I believe it was in the forenoon, whether he could use my car, and I think he said he wanted to go out to his farm; and I said yes, and he telephoned to the Powell-Bacon garage. Q. In other words, you loaned it to him for that afternoon? A. Yes, sir. Q. You made no use of it yourself, at all? A. No, sir."

With respect to the delivery and return of the machine, Mr. Brandeis further testified: "Why, I had an arrangement at any time I wanted to use either of the cars I would telephone, and they would furnish a man to take me out riding and take the car back to the garage. Q. Who would take the car back? A. The man that ran it--the chauffeur that ran the car. Q. You may state whether or not the driver, Arthur Bell, who drove that car on the afternoon of the day when the collision with Mr. and Mrs. Neff occurred, had to your knowledge ever driven you? A. Why, I did not know Mr. Bell. Q. And had he to your knowledge driven either of your cars before this particular day? A. I would not know that either. Q. State whether or not you had the same chauffeur continuously? A. No, the agreement was that they were to furnish any chauffeur they had there that was at leisure that they could furnish. There was not any particular chauffeur. Q. So you would have sometimes one and sometimes another? A. Yes, sir. * * * Q. You had nothing to do with selecting the particular chauffeur for a particular trip? A. No; I just telephoned them to send the car around." It also appears that the defendant never paid the chauffeur anything, but paid the Powell-Bacon Company for his services, which payment was included in the $ 80 per month, as above stated.

It further appears that on the afternoon of the 15th day of April, 1906, the Powell-Bacon Company sent the defendant's automobile out in charge of a chauffeur named Arthur Bell, who testified that, acting upon the order of Mr. Powell, he took the car in question to the home of Arthur Brandeis, and waited there for some time; that Mr. Arthur Brandeis and his family came out, got into the car, and he drove them to Arthur's farm; that upon his return he left them at their home, and started to take the car back to the garage; that on his way there he had a collision with a vehicle driven by the plaintiff and her husband, which caused the injuries of which she complained.

On cross-examination Mr Powell stated: "I cannot give the exact conversation, but the substance was that I told Mr. Brandeis that he could have the man any time he saw fit, and that the man would be subject to his direction when he left my place. * * * There was something said. I told Mr. Brandeis that he had the direction of the man, and that he was responsible for the man after he left my place." On cross-examination the defendant gave the following testimony: "Q. It was your arrangement with the Powell-Bacon Company that, while he was out in the service with your automobile, running it for you or your friends by your authority, he was doing that for you, was it not? * * * A. I presume so. Q. And he would so continue to run the machine for you and by your authority until he returned the machine to the garage, was not that true? And is not that correct under the arrangements you had with the Powell-Bacon Company? A. It would be if he took the car to the garage after he got through. * * * Q. Then, after he got back to the garage and had delivered it, he would then be out of your direction and no longer subject to it? Is not that correct? A. Yes, Powell might send him out with some other man's car right away. Q. When he came back and returned the machine to the garage then he would no longer be subject to your control, his connection with you then ceased for the time being? A. I suppose so."

The foregoing is the evidence, but not all of it, and about the...