Parker v. Stewart
| Decision Date | 30 November 1943 |
| Citation | 296 Ky. 48,176 S.W.2d 88 |
| Parties | PARKER et al. v. STEWART. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Whitley County; Flem D. Sampson, Judge.
Action by Walter Stewart against Morris Parker and another to recover for a truckload of furniture destroyed by fire during course of transportation. Judgment for plaintiff, and defendants appeal.
Reversed with directions.
H. H. Owens, of Barbourville, for appellants.
Zeb A Stewart and H. M. Sutton, both of Corbin, for appellee.
The appellee, Walter Stewart, a common carrier by truck, was employed by Gus Woody to transport a truck load of household furniture from Corbin to Detroit. Stewart subcontracted the hauling to Buster Peace and the appellant, Morris Parker. During the course of transportation by Peace and Parker the furniture and truck were destroyed by fire. Woody sued Stewart and the action was compromised by the entry of an agreed judgment, pursuant to which Stewart paid Woody $500.
Alleging the foregoing facts, and further alleging that Parker, Buster Peace and the latter's father, appellee Dewey Peace, were partners, or joint owners, of the truck in which the hauling was done and were common carriers, the appellee sought judgment for the $500 paid Woody. The action was dismissed as to Buster Peace since he was under twenty-one years of age. The trial resulted in verdict and judgment for the appellee against Parker and Dewey Peace, and they appeal.
The case was submitted to the jury under an instruction to find for the plaintiff if he contracted with Parker, Buster Peace and Dewey Peace to haul the furniture, providing Stewart necessarily settled the claim with Woody. Since the instructions do not predicate liability on negligence, the court necessarily found as a matter of law that Parker and Peace were common carriers and liable as insurers. The only evidence directed to this issue was that of the appellee, who testified that he had employed Parker and Peace to haul for him several times and said, 'They were engaged in that business, they hauled for the Jellico grocery and under a contract for Silverfleet and hauled for me the other jobs and I have seen them doing business'.
This evidence was sufficient to establish only that Parker and Dewey Peace were private or casual carriers, rather than common carriers. In Robertson & Co. v. Kennedy, 2 Dana 430, 26 Am.Dec. 466, a common carrier was defined as one 'who undertakes, for hire or reward, to transport the goods of all such as choose to employ him, from place to place'. That this concise definition is in accord with the great weight of modern authority, see the many cases in 8 Words and Phrases, Perm. Ed., 46, defining the term, common carrier.
The evidence before us does not establish that...
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