North Side Chevrolet v. Clark

• Decision Date: 26 March 1940
• Docket Number: 16321.
• Citation: 25 N.E.2d 1011,107 Ind.App. 592
• Parties: NORTH SIDE CHEVROLET INC., v. CLARK.
• Court: Indiana Appellate Court

25 N.E.2d 1011

107 Ind.App. 592

NORTH SIDE CHEVROLET INC., v. CLARK.

No. 16321.

Appellate Court of Indiana, in Banc.

March 26, 1940

Frank H. Fairchild and James L. Murray, both of Indianapolis, for appellant.

Max M. Plesser and Louis Rosenberg, both of Indianapolis, for appellee.

BRIDWELL Presiding Judge.

This appeal is from a judgment rendered in an action against appellant and one James H. Mumaw which was brought by appellee to recover damages for the loss of companionship and services of his wife, and expenses incurred by him on account of personal injuries suffered by such wife.

The complaint filed consisted of two paragraphs, and the answer thereto was in general denial. From averments contained in each paragraph, it appears that the injuries to appellee's wife occurred when an automobile owned by appellant, and being operated by the said Mumaw, struck and collided with an automobile occupied by appellee and his wife, it being alleged that said collision was occasioned by the careless, negligent and reckless manner in which appellant's automobile was being operated at the time of collision.

The first paragraph of complaint proceeds upon the theory that Mumaw at the time of the collision was an agent and employee of appellant, acting within the scope of his employment, and that appellant is, therefore, responsible for his negligence the second paragraph is upon a different theory, and charges negligence on the part of appellant in employing Mumaw as a salesman of automobiles, authorizing and allowing him to drive and operate automobiles owned by appellant over and upon the streets of the city of Indianapolis, Indiana, when appellant knew, or by the exercise of ordinary care should have known, that said Mumaw was an "habitual drunkard and very frequently drank intoxicating liquor and would become drunk, and while in such drunken condition would drive and operate automobiles over and upon the streets of Indianapolis."

After the issues were closed, trial was had, and there was a verdict and judgment against both defendants to the complaint.

Thereafter appellant filed its motion for a new trial which was sustained, and in due course, upon the issues joined between the parties to this appeal, another jury trial occurred resulting in a verdict for appellee and against appellant in the sum of $1,000. Judgment in accordance with the verdict followed.

Appellant duly filed its motion for a new trial, asserting as causes therefor, among others, that the verdict of the jury is not sustained by sufficient evidence, and that such verdict is contrary to law. This motion was overruled, appellant excepted, and perfected this appeal, assigning as error the action of the court in overruling said motion.

It is appellant's contention that the evidence in this cause is not conflicting; that the facts established by such evidence fail to prove any negligence on its part, and that it is not responsible for the alleged negligent conduct of Mumaw averred in the complaint.

We have read the evidence; it establishes, without any contradiction in the testimony relative thereto, facts summarized as follows: Appellant, on and prior to November 22, 1936, was engaged in selling automobiles, and on said date and for some eight months before had in its employment as a "used car salesman" the said James H. Mumaw, who, in the discharge of his duties to appellant as salesman, would demonstrate cars owned by appellant to prospective purchasers, and would drive and operate the same over and upon the streets of the city of Indianapolis, Indiana, appellant having knowledge of and authorizing such action. Appellant maintained one place of business on East Washington street in said city, and another in the northern part of said city at Broad Ripple. On said November 22, Mumaw was engaged in the performance of his duties at the East Washington street place of business, and about 7 or 7:30 o'clock p. m., he, accompanied by another salesman, drove one of appellant's cars from this place to the Broad Ripple establishment, where he exchanged the car he had been driving for another which he desired to show and demonstrate to a possible customer. He obtained this second car from a parking lot of appellant's, removing the dealer's license plates from the one and placing them upon the other, as it was the custom of appellant's salesmen to do when necessary. While at this parking lot he conversed with an unidentified person and then left, driving the car which he...