Sanders v. Ryan
| Decision Date | 26 May 1942 |
| Docket Number | 16741. |
| Citation | 41 N.E.2d 833,112 Ind.App. 470 |
| Parties | SANDERS v. RYAN et al. |
| Court | Indiana Appellate Court |
C J. McLemore and Linder & Seet, all of Indianapolis, for appellant.
Allen Hastings & Allen, of Washington, and Kimmell & Kimmell and Gilbert Shake. all of Vincennes, for appellees.
This cause of action in the trial court was for damages for personal injuries sustained by the appellant in an automobile collision which occurred on or about October 30th, 1936, on the United States Highway No. 50 at a point on said Highway between Bridgeport, Illinois, and the IndianaIllinois State Line. The complaint was in one paragraph and was answered in general denial. The cause was submitted to a jury for trial upon the issues thus made.
At the close of the appellant's evidence, the appellees filed a motion for a directed verdict. After the court had sustained the motion for a directed verdict, the appellant asked leave to re-open the case and to introduce additional evidence. The appellees objected to this request and the court sustained the objection overruling the said motion and request. The court then instructed the jury to return a verdict for the appellees which was accordingly done. The judgment followed the verdict.
In due time, the appellant filed a motion for new trial which was overruled with an exception, the sole error assigned being the ruling on said motion. It is from the above judgment that this appeal has been perfected. We now set out the causes or grounds of the motion for new trial, as follows:
The appellees contend that the appellant's brief is insufficient to present any errors for review due to defects in briefing in the matter of presenting the errors relied upon. While there is merit in the appellee's contention in this respect, yet we have concluded that the appellant's brief shows a good-faith effort, and for that reason, as heretofore indicated, we have considered the case upon its merits.
In directing a verdict for the appellees, who were the defendants below, the trial court in effect held that the evidence offered to sustain the complaint was of such character that a verdict, if returned for appellant, could not be allowed to stand. The appellees concede that a verdict may be directed against the plaintiff only where there is a total absence of evidence to support one or more material and essential allegations of the complaint. In this connection, the appellees contend that there is an absence of evidence on the issue as to whether or not Alonzo Scritchfield, who was driving the automobile belonging to the appellees, was engaged within the scope of his employment by the appellees at the time of the accident in which the appellant received her injuries. It is the further contention of the appellees that in the absence of evidence showing that Scritchfield was so employed at the time of the accident, no liability could attach to the appellees, or any of them, and that, therefore, a verdict for these appellees was properly directed. We have examined the evidence on this issue which may be summarized as follows: Scritchfield was employed by Tom Ryan as a hired hand and was driving the automobile of one of the appellees at the time of the accident, and was taking some people home from work, said people being farmers on the Ryan farm and some carpenters. It is also contended by the appellant that there were some implied admissions of the appellees concerning their liability. The most that can be said from the evidence is that Scritchfield was employed generally by one of the appellees, but there was no showing that he was acting in the scope of his employment at the time of the accident, or that the operation of the said automobile was any part of his work, or that he had ever previously operated the automobile in his work. The appellees contend that the mere fact that Scritchfield was driving an automobile belonging to one of the appellees is insufficient to establish liability upon the appellees, since there was no showing made that he was driving it at the direction of any of the appellees or that it was a part of his duties to drive it, or that it was being driven with the knowledge or consent of the owner, and that even if consent had been shown, all of these facts would not have been sufficient to establish liability. They cite the cases of Swanson, etc., Mfg. Co. v. Johnson, 79 Ind.App. 321, 138 N.E. 262; Wabash Railway Co. v. Savage, 110 Ind. 156, 9 N.E. 85; Fisher v. Fletcher, 191 Ind. 529, 133 N.E. 834, 22 A. L.R. 1392, and Bojrab v. B. & B. Sand & Gravel Co., 86 Ind.App. 556, 156 N.E. 519. There is some evidence indicating that Scritchfield was taking some fellow employees home at the time of the accident, but there is no showing that this act was a part of his duties, or was being done at the direction of any or all of the appellees.
We believe that the trial court was correct in the conclusion it evidently reached that the evidence failed to bring into application the law of respondeat superior.
It is next contended that the appellees' liability for Scritchfield's act could be inferred and implied from the silence of the appellees under the circumstances, as follows One of the witnesses, McLemore, an attorney, told the Ryans that he had come to see them to investigate the accident and check up and find out who was liable. McLemore told the Ryans that he had been sent to see them by a person who might make a claim against them. We agree with the appellees that under these circumstances the Ryans could not...
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Devine v. Grace Construction Co. & Supply Co., 19335
...of Bryant, Indiana, 1931, 95 Ind.App. 33, 178 N.E. 305.3 Dunnington v. Syfers et al., 1901, 157 Ind. 458, 62 N.E. 29; Sanders v. Ryan, 1942, 112 Ind.App. 470, 41 N.E.2d 833.4 Boyd v. Brown et al., 1889, 120 Ind. 393, 22 N.E. 249; Rawlings v. Vreeland et al., 1920, 76 Ind.App. 209, 127 N.E.2......