Rodgers v. Roland

• Decision Date: 25 March 1949
• Citation: 309 Ky. 824
• Parties: Rodgers v. Roland et al.
• Court: United States State Supreme Court — District of Kentucky

309 Ky. 824

Rodgers v. Roland et al.

Court of Appeals of Kentucky. Criminal, Common Law, and Equity Division.

March 25, 1949.

1. Partnership. — The fact that surname of individual defendants in personal injury suit constituted part of name of partnership, of which they were alleged to be members, did not authorize presumption by court that defendants were members of such partnership, especially in view of denial in their answer that there was any such firm.

2. Judgment. — Mere surmise or probability of defendant's liability to plaintiff is insufficient to warrant judgment against defendant.

3. Partnership. — In action against alleged members of partnership operating taxicab for injuries to passenger therein, burden was on plaintiff to show that defendants were members of such firm.

4. Partnership. — In action for injuries to taxicab passenger, evidence was insufficient to take to jury question whether individual defendants were members of partnership operating taxicab.

Appeal from Kenton Circuit Court.

A.M. Caddell for appellant.

O.M. Rogers and Earl Rodney King for appellees.

Before Joseph P. Goodenough, Judge.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

On November 16, 1946, plaintiff, appellant here, filed this action in the Kenton circuit court against Roland Cab Company, a local partnership engaged in the taxicab business in the city of Covington, the members of which she alleged were Edna Roland and Harold Roland.

For cause of action she alleged that on June 21, 1946, she phoned the taxicab company to send a cab to her home for a trip to some other place within the city, and that in due time a cab did arrive in front of her residence and stopped against the curb where she was standing awaiting it. She stated that it was headed south and she opened the back door on the left side and got into the cab with the intention of taking her seat on its right side; that she neglected to shut the door, which she had opened before she became seated and then reached her hand out to take hold of the handle and shut it; that the city had installed some eight or ten feet south of the place where she entered the cab an iron post cemented in the outer edge of the sidewalk, upon the top of which was a placard saying, "No Parking"; that before she succeeded in closing the door her hand came in contact with that post resulting in the injuries and damages for which she sought judgment against defendants in the sum of $2,000 for her personal injury, plus $96 for physician and X-ray bills.

The first paragraph of defendants' answer (each filing a separate one) is: "Comes the defendant and denies specifically each and every allegation in the petition of the plaintiff herein." A second paragraph pleaded contributory negligence on the part of plaintiff. At the trial the only testimony introduced or heard as to how the injury occurred so as to establish negligence on the part of the defendants as charged in her petition was that given by her. No other witness concerning such facts testified in the case. Plaintiff, however, did introduce her physician who made an X-ray of her hand, which disclosed no broken bones, but only some bruises thereon. She was in her physician's office for only a sufficient time for him to make the examination of her hand and take the X-ray picture. She then went to the hospital where another X-ray was made with the same result. Her physician testified only to the facts stated and to the pain and suffering which she might endure.

At the close of the evidence the court sustained defendants' motion for a peremptory instruction in their favor, which was accordingly done and plaintiff's petition dismissed, from which she prosecutes this appeal.

The evidence for plaintiff in this case is not in condition so as to require us to either discuss or determine the issue of negligence of defendants or contributory negligence by plaintiff. The first paragraph of defendants' answer put in issue every fact necessary to sustain a judgment for plaintiff against either defendant, since the general denial made in the first paragraph of their answers was a denial that there was any such taxicab company operating in Covington as the Roland Cab Company, or if there were such a partnership so engaged that defendants were members thereof so as to be responsible for the negligent operation of the taxicab that plaintiff entered. We shall, therefore, not determine either the question of negligence of defendants, or that of contributory negligence on the part of plaintiff, but confine the opinion entirely to the failure of plaintiff to prove that defendants were in anyway engaged in the taxicab business, either as members of the named partnership or otherwise.

In 1942 subsection (7) of section 113 of our Civil Code of Practice was amended so as to read in part:

"It shall be a sufficient traverse to state that all the affirmative allegations of the adverse pleading are specifically denied, except those specifically admitted in the pleading containing the traverse."

Prior to that time the Code section required a specific denial of each and every material allegation made in the pleading of the adversary of the pleader, but the amendment referred to dispensed therewith. So that the question presented for...