New York Indemnity Company v. Ewen

• Decision Date: 14 October 1927
• Citation: 221 Ky. 114
• Parties: New York Indemnity Company, et al. v. Ewen.
• Court: United States State Supreme Court — District of Kentucky

221 Ky. 114

New York Indemnity Company, et al. v. Ewen.

Court of Appeals of Kentucky.

Decided June 17, 1927.

Rehearing Denied, with Modification, October 14, 1927.

1. Master and Servant. — Petition against husband and wife, joint owners of an automobile, for injuries sustained by a passenger when wife was driving and the husband was not present, which

fails to allege that owners are husband and wife or car used for a family purpose, fails to state a cause of action against the husband.

2. Negligence. — One is not guilty of contributory negligence as a matter of law in riding as a passenger in automobile of one known to him to be a fast driver, but not shown ever to have had an accident.

3. Negligence. — Passenger is not guilty of contributory negligence as a matter of law in riding in automobile of one known to him to be a fast driver, where he requests him to drive carefully, and there is no evidence that he was not entitled to believe the request would be complied with.

4. Negligence. — Where passenger in automobile was injured because of driver's recklessness, and contributory negligence was claimed, in that passenger got into the car, knowing that driver was reckless, held, that a concrete instruction on contributory negligence should have been given.

5. Action. — Passenger injured by the negligent driving of an automobile by the holder of a policy indemnifying against loss from liability imposed by law on account of the ownership, maintenance, and use of the automobile, may not join in his action assured and insurer, notwithstanding policy provision that assured's insolvency should entitle claimant to maintain an action against the insurer, and allegation and proof of assured's insolvency.

6. Insurance. — Passenger, injured by automobile driver's negligence, has no cause of action against the driver's insurer until judgment and return unsatisfied of execution against the assured, notwithstanding policy provision that assured's insolvency should entitle claimant to maintain an action against the insurer.

7. Appeal and Error. — Mere clerical error in a petition, in that it declares on an insurance policy not in existence, may be amended on return of the case from the reviewing court for new trial.

Appeal from Bell Circuit Court.

LOW & BRYANT, JAMES M. GILBERT and GEO. J. LEWIS for appellants.

N.R. PATTERSON and JAMES S. GOLDEN for appellee.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Reversing.

On the 3d day of January, 1926, while a passenger in an automobile owned jointly by her sister and brother-in-law, the appellants Cora B. Mealey and Charles W. Mealey, the appellee was thrown from the automobile when it turned over on the public road near Barbourville. Appellee was very severely injured. One of the vertebra in her spine was broken, causing a paralytic condition of the body below the waist, and from which condition the appellee has suffered, and, as the evidence shows, will continue to suffer, a great deal of pain, in addition to being permanently injured. The evidence satisfactorily shows that the automobile was caused to turn over on account of the reckless way in which it was being driven by Mrs. Cora B. Mealey at the time of the accident. Mr. and Mrs. Mealey were carrying, at the time of this accident, what is commonly called indemnity insurance, with the appellant New York Indemnity Company, in the sum of $25,000. The appellee brought this suit against Mr. and Mrs. Mealey and the New York Indemnity Company for damages on account of the injuries she had sustained as above set out. On the trial she was awarded a verdict in the sum of $25,000 against all three of the defendants, and, from the judgment entered on that verdict, this appeal is prosecuted by all three defendants.

We can at once dispose of this case as to Charles W. Mealey. He was a co-owner with his wife of the automobile which was wrecked, but he was not in the car at the time of the accident. There is no allegation in the petition that Charles W. Mealey and Cora B. Mealey are husband and wife, and the only way this fact is discovered is by a very slight allusion to it in the answer of one of the witnesses when testifying about the solvency of Mr. and Mrs. Mealey. There is no allegation in the petition that Mrs. Mealey, a co-owner of this car, was using it at the time of the accident within the scope of the family purpose doctrine so as to charge her husband, Charles W. Mealey, with responsibility for her negligence. The proof is equally silent as to any such family purpose. In her brief in this court, the appellee pitches her claim against Charles W. Mealey solely on the family purpose doctrine, but, in the absence of any proof or allegation in this record as to this matter, the court erred in overruling Charles W. Mealey's demurrer to the petition, and in failing to sustain his motion for a peremptory instruction. It results, therefore, that the judgment as to Charles W. Mealey must be reversed.

The motion for a peremptory instruction made by Cora B. Mealey, however, was properly overruled. There was abundant evidence to show that the accident was caused by the negligent way in which she was driving the automobile at the time it turned over. She insists, though, that the appellee was guilty of contributory negligence as a matter of law, in that the latter, with knowledge that the appellant was a reckless driver nevertheless got in the machine which appellant was driving and rode with her. The evidence, however, does not show that the appellee knew Mrs. Mealey was a reckless driver. Appellee did admit that she knew Mrs. Mealey was accustomed to drive very fast, but it is not shown that Mrs. Mealey had ever had an accident before this or that her fast driving had resulted in harm to any one. Besides, appellee testified that she asked Mrs. Mealey to drive carefully, and there is nothing in the evidence to show that appellee did not have the right to believe that her request would be complied with. Under this state of fact we conclude that appellee was not guilty of contributory negligence as a matter of law, as appellants insist.

However, we are of opinion that this case presented a state of facts calling for a concrete instruction on contributory negligence. As said in the case of L. & N.R. Co. v. King's Admr., 131 Ky. 347, 115 S.W. 196:

"The purpose of instructions is to present that issue in the form most intelligible to the jury."

The ordinary abstract instruction on contributory negligence will not bring sharply home to the jury in an intelligible form the main defense relied upon in this case. To deny a concrete instruction under such circumstances is, as said in the case of Stearns Coal & Lumber Co. v. Williams, 171 Ky. 46, 186 S.W. 931, "almost a denial of appellant's right to have its theory of the case submitted."

However, the instruction offered by appellant on this branch of the case on the trial below was clearly erroneous. But, though it was, the trial court should have prepared a proper instruction covering such theory. If the evidence on the next trial warrants such a concrete instruction on contributory negligence, the court will give the following instruction:

"If the jury believe from the evidence that, when the plaintiff, Katherine Ewen, got into and rode in the automobile of the defendant Cora B. Mealey, on the occasion complained of in the evidence, she, the plaintiff, knew or had reasonable grounds to believe that the defendant Cora B. Mealey would drive said car at an excessive and dangerous rate of speed, and that thereafter said Cora B. Mealey did drive said car at an excessive and dangerous rate of speed, by reason whereof said defendant did cause said automobile to overturn and injure the plaintiff, or if the jury believe from the evidence that the plaintiff, even though she had no knowledge or reasonable grounds to believe, at the time she got into said automobile, that the defendant would drive said automobile at an excessive or dangerous rate of speed, yet nevertheless, after she got into said automobile, discovered that said Cora B. Mealey was driving her automobile at an...