Senters v. Ratliff's Adm'R.

• Decision Date: 09 May 1939
• Citation: 278 Ky. 290
• Parties: Senters v. Ratliff's Adm'r.
• Court: United States State Supreme Court — District of Kentucky

278 Ky. 290

Senters v. Ratliff's Adm'r.

Court of Appeals of Kentucky.

May 9, 1939.

1. Carriers. — The operator of a trucking business was a "private or casual carrier," rather than a "common carrier," where truck was not operated over any established route and was used to haul

lumber for operator's mill, goods for a certain store and for purposes of moving household goods for various parties; and hence operator was not liable as an insurer for damages to household goods and furniture destroyed while being moved in his truck.

2. Appeal and Error. — In action against administrator of a person claimed to have been engaged in trucking business as a common carrier for damages to household goods and furniture sustained while being moved in deceased's truck, instructing, in substance, that if deceased expressly and publicly offered to carry for all persons indifferently or by his conduct and manner of conducting business held himself out as ready to carry for all on such trips as he made on occasion in question, deceased was a common carrier was not prejudicial to plaintiff.

3. Carriers. — A private or casual carrier was required to exercise only ordinary care to avoid injury or loss of goods entrusted to him.

4. Carriers. — A carrier of goods is not liable as a common carrier unless he was under a legal obligation to accept the goods and carry them and would have been liable to an action if, without reasonable excuse, he had refused to receive them; and a carrier could not be liable to such an action, unless he had expressly and publicly offered to carry for all persons indifferently or had, by conduct and manner of conducting business, held himself out as ready to carry for all.

5. Carriers. — The law applicable to common carriers, being peculiarly rigorous, ought not to be extended to persons who have not expressly assumed that character, or by their conduct and from nature of their business justified the belief of the public that they intended to assume it.

Appeal from Pike Circuit Court.

FRANCIS M. BURKE and J. ERWIN SANDERS for appellant.

STEELE & VANOVER for appellee.

Before H. Clay Kauffman, Special Judge.

OPINION OF THE COURT BY JUDGE CAMMACK.

Affirming.

Appellant, Orville Senters, filed this action against appellee, L.E. Ratliff, as administrator of the estate of his deceased brother, Bee Ratliff, for damages to household goods and furniture which were destroyed while being moved on Bee Ratliff's truck. The first trial resulted in a hung jury. The following stipulation was entered into by the parties at the beginning of the second trial:

"It is stipulated by and between counsel for plaintiff and defendant that the sole issue in this case is whether or not the defendant's decedent, Bee Ratliff, was a common carrier and engaged in the hauling and transfer business, at the time and place involved and mentioned in the pleadings, and the value of the furniture and household goods destroyed; all other questions are waived by agreement."

Appellee's motion for a peremptory instruction at the close of appellant's evidence was overruled. The motions of both the appellant and the appellee for a peremptory instruction at the close of all the evidence were overruled. The court gave the following instruction to the jury on the question as to whether Bee Ratliff was a common carrier:

"If you should believe from the evidence that Bee Ratliff had expressly and publicly offered to carry for all persons indifferently, or had by his conduct and the manner of conducting his business of hauling, held himself out as ready to carry for all on such trips as he made on the occasion referred to in the evidence, then, if you so believe, he was a common carrier, and you should find for the plaintiff as set out in Instruction No. 2. Unless you so believe, you will find for the defendant."

The jury returned a verdict for appellee. Appellant is appealing from the judgment entered on that verdict. He insists that the evidence shows conclusively that Bee Ratliff was engaged in the business of transporting goods for hire for the public generally and that he, therefore, was entitled to a peremptory instruction.

Bee Ratliff operated a saw...