Svoboda v. Western Fuel Co.

• Decision Date: 08 May 1923
• Docket Number: 34956
• Citation: 193 N.W. 406,195 Iowa 1137
• Parties: FRANK SVOBODA, Appellant, v. WESTERN FUEL COMPANY et al., Appellees
• Court: Iowa Supreme Court

193 N.W. 406

195 Iowa 1137

FRANK SVOBODA, Appellant, v. WESTERN FUEL COMPANY et al., Appellees

No. 34956

Supreme Court of Iowa, Des Moines

May 8, 1923

Appeal from Pottawattamie District Court.--E. B. WOODRUFF, Judge.

ACTION at law, to recover damages for injury to property. There was a directed verdict and judgment for the defendant Willadson. Plaintiff appeals.

Affirmed.

George H. Mayne and Thomas O. Tacy, for appellant.

Kimball Peterson, Smith & Peterson, for appellees.

WEAVER J. PRESTON, C. J., STEVENS and DE GRAFF, JJ., concur.

OPINION

WEAVER, J.

In this action, plaintiff seeks to charge the defendant Willadson with liability for damages on account of injury to plaintiff's property, alleged to have been caused by the trespass or negligence of one Thomas, while in the service of said Willadson. At the conclusion of the testimony, the trial court sustained the motion of Willadson's counsel for a directed verdict in his favor. From said ruling and judgment plaintiff appealed. In submitting the appeal to this court, appellant assigns but two alleged errors, as follows:

"First. The court erred in excluding the testimony of defendant Thomas as to his reasons for delivering the coal in the rear of the premises instead of the front.

"Second. The court erred in sustaining defendant's motion for an instructed verdict as to defendant Willadson."

Plaintiff was a marble dealer, whose place of business was bounded on one side by a lot and building occupied by one Friedman, who ordered a load of coal from the defendant Willadson. The defendant Thomas was the owner of a truck which he used for delivering coal to Willadson's customers, when so directed, and was paid by the load for services performed. Friedman having ordered a load of coal from Willadson, the latter called upon Thomas to make the delivery, instructing him to dump the coal on the ground at 724 West Broadway Street. Willadson also sent with Thomas another man, whose business it was to carry the coal so dumped on the ground, upstairs into the Friedman building. As these men approached the place of delivery, the man who was to carry the coal upstairs suggested to Thomas that the work could be done more conveniently by dumping the coal at the rear of the premises, instead of at the front, and thereupon, Thomas undertook to drive his load around to the rear. In so doing, he either drove across a portion of plaintiff's lot or so near the line that some part of his truck came in contact with a stone or marble monument on plaintiff's premises, tipping the monument over and against other monuments standing there, and causing considerable injury to such property.

This action to recover-damages is based on the theory that Thomas was the employee of Willadson, and that liability for his negligence while in such service is chargeable to Willadson. The evidence was undisputed that Thomas owned the truck which he...