Ry. Express Agency, Inc. v. Bonnell

Decision Date23 June 1941
Docket NumberNo. 27533.,27533.
Citation33 N.E.2d 980,218 Ind. 607
PartiesRAILWAY EXPRESS AGENCY, Inc. v. BONNELL.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Action by Charles L. Bonnell against the Railway Express Agency, Inc., and others, for personal injuries sustained in an automobile accident. From the judgment, the named defendant appealed to the Appellate Court, which transferred the cause to the Supreme Court under section 4-209, Burns' Ann.St.

Reversed with directions.Appeal from Superior Court, Vigo County; Albert R. Owens, judge.

Beasley, O'Brien, Lewis & Beasley, of Terre Haute, for appellant.

David E. Rosenfeld and Lewis R. Sutin, both of Terre Haute, for appellee.

SHAKE, Judge.

The appellee, Charles L. Bonnell, sued the appellant, Railway Express Agency, Inc., Mack Mace, and William J. Tucker for personal injuries caused by the negligent operation of an automobile by Mace. There was a verdict and judgment against the appellant and Mace and in favor of Tucker. The appellant filed a separate motion for a new trial, which was overruled, and this constitutes the only assigned error. It is contended that the evidence is not sufficient to sustain the verdict and that the trial court erred in giving instructions 3 and 29 tendered by the appellee.

There was testimony from which the jury might have found that the express agency had a city office and also a place of business at the union station at Terre Haute. Tucker was general agent and Mace the night foreman at the union station. On the day of the accident Mace concluded his duties at 8:30 o'clock in the morning, at which time his wife's automobile, which he used for his own convenience in going to and from work, was parked at the station. It was Mace's intention to use the automobile in going to an office building in the downtown section to pay a personal insurance premium. While Mace was still on the appellant's premises, Tucker received a complaint by telephone from a fish market relative to a lost shipment of merchandise. Mace overheard the conversation and volunteered to take Tucker to the fish market by way of the city office, where Tucker desired to procure a report blank. Tucker accepted the invitation, although there were a number of agency trucks, in charge of drivers, then and there available for his use. Mace drove the automobile without any directionsfrom Tucker as to the manner of its operation or the route to be taken. They proceeded past the insurance office and were en route to the city office of the express agency when the accident occurred. There was no evidence that Tucker directed or requested Mace to provide the means of transportation or that Mrs. Mace's automobile had previously been used for any such purpose. It is not contended that Tucker was not within the course and scope of his employment or that Mace was not negligent.

The governing principle was...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT