Smith v. Weaver

• Citation: 124 N.E. 503,73 Ind.App. 350
• Decision Date: 17 October 1919
• Docket Number: No. 10085.,10085.
• Parties: SMITH v. WEAVER.
• Court: Court of Appeals of Indiana

73 Ind.App. 350

124 N.E. 503

SMITH

v.WEAVER.

No. 10085.

Appellate Court of Indiana, Division No. 1.

Oct. 17, 1919.

Appeal from Superior Court, Marion County; Theophilus J. Moll, Judge.

Action by Anna F. Weaver, administratrix, against Ella B. Smith and Harry P. Smith. From judgment for plaintiff, defendant Ella B. Smith appeals. Reversed, with instructions to sustain defendant's motion for new trial.

Asa Boulden and Ryan, Ruckelshaus & Ryan, all of Indianapolis, for appellant.

John W. Becker, Carl H. Weye, and John F. Robbins, all of Indianapolis, for appellee.

ENLOE, J.

This was an action by appellee, as administratrix of the estate of Ella J. Weaver, against the appellant and her husband, Harry P. Smith, to recover damages occasioned by the death of said Ella J. Weaver, who was, while crossing Meridian street, in the city of Indianapolis, struck by the automobile of appellant, being then and there driven by said Harry P. Smith, her husband.

The complaint was in one paragraph, to which the appellant and her codefendant answered in general denial. Trial was had, resulting in a verdict and judgment against both defendants.

The appellant duly filed her motion for a new trial, which being overruled, this appeal is prosecuted, and the only error assigned is the action of the trial court in overruling said motion for a new trial.

The reasons assigned in said motion, and not waived on this appeal, so far as necessary to be considered in determining the same, are:

(1) Verdict is not sustained by sufficient evidence.

(2) Error in refusing to give instruction No. 4 tendered by appellant.

(3) Error in giving instruction No. 8 requested by appellee.

(4) Error in giving instruction No. 9 requested by appellee.

(5) Error in giving instruction No. 11 requested by appellee.

(6) Error in giving instruction No. 13, requested by appellee.

The material averments of the complaint, so far as the same are necessary to be stated in the consideration of this appeal, are as follows: That on the 17th day of February, 1915, one Ella J. Weaver was struck, while crossing Meridian street in the city of Indianapolis, by an automobile, then and there driven by one Harry P. Smith, and so injured that death resulted therefrom; that, a short time prior thereto, the appellant Ella B. Smith purchased in her own right, a certain automobile to be used and which was used for the pleasure of herself and other members of her family; that she authorized, permitted, and directed said Harry P. Smith to have charge of and to operate said car when in use for the purposes aforesaid, for which purposes it was held and used by said Ella B. Smith; that on the day aforesaid, in the city aforesaid, said Ella B. Smith, in pursuance of the purposes and arrangement aforesaid, permitted and directed Harry P. Smith to take out and drive said car in, about, and upon the streets of the city of Indianapolis for the business aforesaid and of her family; that on the day aforesaid Harry P. Smith was driving the said car in the service aforesaid and of the family, north on, in, and along Meridian street in said city, the same being a popular street and much used by automobiles and other vehicles; that his eyesight was not good, as the defendants and each of them well knew; that he was lacking in care and skill and knew not how to bring the car to a slow and safe speed in the presence of immediate danger, as the defendants well knew; that plaintiff is the duly appointed and qualified administratrix of the estate of said Ella J. Weaver. Other material allegations of the complaint relate to acts of negligence on the part of said Harry P. Smith in driving said car at said time.

Concerning the main features of this case there is no material controversy as to the facts, but counsel hold widely divergent views as to the law applicable thereto. No question is made as to the liability of the husband, but appellant insists that, under the facts of this case, there is, as far as she is concerned, no liability, because the evidence fails to show that, at the time the deceased was struck and the injury inflicted causing her death, Harry P. Smith was not acting in the capacity of either agent or servant for her, but had taken and was using said automobile for purposes entirely his own.

The theory of appellee may be fairly gathered from the ninth and eleventh instructions tendered by the appellee, and given by the court to the jury, which instructions were as follows:

“No. 9. The court further instructs you that if you should find defendant Ella B. Smith the owner of the automobile in question, that such ownership is not of itself sufficient to make her liable for the negligent acts, if any, of defendant Harry P. Smith, nor is the fact that defendant Ella B. Smith is the wife of defendant Harry P. Smith, of itself sufficient to make her liable for the negligent acts, if any, of her husband, Harry P. Smith, while operating said automobile; but if you should find that defendant Ella B. Smith owned and kept said automobile for the pleasure of herself and family, including defendant Harry P. Smith, and you further find that said Harry P. Smith had...