Otis Hidden Co. v. Newhouse

• Decision Date: 17 June 1924
• Citation: 204 Ky. 324,264 S.W. 731
• Parties: OTIS HIDDEN CO. v. NEWHOUSE.
• Court: Kentucky Court of Appeals

264 S.W. 731

204 Ky. 324

OTIS HIDDEN CO. v. NEWHOUSE.

Court of Appeals of Kentucky.

June 17, 1924

Rehearing Denied Sept. 23, 1924.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Wilbur I. Newhouse against the Otis Hidden Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Baskin & Vaughan and Arthur M. Rutledge, all of Louisville, for appellant.

Fred Forcht, and Merit O'Neal, both of Louisville, for appellee.

HOBSON C.

Appellee Wilbur I. Newhouse, was a teller at the National Bank of Kentucky, which was located at the corner of Fifth and Main streets, Louisville, Ky. The appellant, the Otis Hidden Company, was a wholesale dealer in house furnishings on Main street, a few doors east of Fourth street. In July, 1921 Newhouse went to the store of the Otis Hidden Company to look at a bed, and was taken by one of the boys to the fourth floor to see the bed. After he had looked at the bed, the boy showed him a lamp, the shades on which had been damaged a little, and told him that he could get it cheaper. J. W Tuell was the head salesman. He was at the bank on August 18th and while there Newhouse asked him about the lamp. As a result of this conversation Newhouse, after banking hours, phoned Tuell that he would come up and look at the lamp. When he reached the house, he asked Tuell to see the lamp. Tuell said, "All right, I will take you up." Thereupon they went to the elevator; the elevator was not operated by a regular man, but each person who took customers up in the elevator pulled the rope and operated it. In this way Tuell took Newhouse to the fourth floor, where they got off the elevator and walked over and looked at the lamp, which was about 10 or 15 feet away from the elevator. They were looking at the lamp two or three minutes; Newhouse asked Tuell to set the lamp aside, and said that he would take it if his wife liked it. Tuell set the lamp aside and they then started back to the elevator; Tuell being a little to the left of Newhouse and a little in front of him.

As to what happened when they reached the elevator the testimony is conflicting. Newhouse says that Tuell did not ring any bell, but opened the door and made a kind of motion with his hand (indicating), which he thought meant to step in, and he walked right in; that Tuell opened the door wide enough for him to step in, and he stepped in without touching anything. It was dark; the elevator was not in place, and he fell to about the second floor; falling upon the top of the elevator as it was coming up.

Tuell says that when they reached the elevator he rang the bell, which was the signal for the elevator to be moved, and after ringing the bell opened the door about a foot and reached in with his hand to pull the rope to bring the elevator up, and as he was doing this he looked around and saw Newhouse going down the shaft, foot foremost; that he made no motion with his hand, except to reach for the rope. He also says that it was light in the room; that a light was burning in the room a few feet from the elevator.

The proof for appellant is to the effect that appellant is exclusively a wholesale dealer and sells nothing to the retail trade, but that its employés may buy damaged articles, but only on their own account, and it proved by Tuell that he told Newhouse that he thought he could arrange to get the lamp for him; that he would have to buy it himself and sell it to him. On the other hand, Newhouse swears that he did not tell him that appellant would not sell him any lamp, or that he would have to buy it himself and sell it to him, and that he said the shades of the lamps were damaged, and that was the reason they could sell them retail.

The plaintiff recovered a judgment for $15,000. The defendant appeals.

Newhouse was frightfully injured, and no complaint is made of the amount of the judgment; but it is earnestly insisted that a peremptory instruction to find for the defendant should have been given, on two grounds: (1) That Tuell was not in the service of the defendant in selling the lamp, as the house did not sell anything by retail; (2) that Newhouse was guilty of contributory negligence.

1. Tuell was the head salesman of the house. If he was buying the lamp himself, and selling it to Newhouse on his own account, he did not represent the house in the transaction; but if he was selling the lamp for the house, although contrary to its instructions, the appellant is liable for his negligence, for he was acting within the apparent scope of his authority. He does not say that he ever told Newhouse of the rules of the house, and Newhouse says that he told him that they could sell the lamps at retail, because they were damaged. The boy who had first shown him the lamp told him the same thing. Newhouse, if his testimony is true, had no notice that Tuell was not acting within his authority in selling him the lamp. In such cases the principal, who confers the appearance of authority, is liable for the acts of his agent within the apparent scope of the agent's powers. Tuell being the head salesman, it was within the apparent scope of his powers to sell the damaged lamps, notwithstanding the contrary secret instructions to him.

2. As to the question of negligence on the part of Tuell and contributory negligence on the part of Newhouse, the case is not without difficulty. In Phillips Co. v. Pruitt, 82 S.W. 628, 26 Ky. Law Rep. 831, the appellant operated a large retail store in Owensboro. Mrs. Pruitt...