Wilhelmi v. Berns

• Decision Date: 21 June 1938
• Citation: 274 Ky. 618,119 S.W.2d 625
• Parties: WILHELMI v. BERNS.
• Court: Kentucky Court of Appeals

119 S.W.2d 625

274 Ky. 618

WILHELMI v. BERNS.

Court of Appeals of Kentucky

June 21, 1938

Rehearing Denied Oct. 4, 1938.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Paul S. Berns against J. W. Wilhelmi, doing business under name of Douglas Garage, and others, for injuries sustained in an automobile collision. Judgment for plaintiff, and named defendant appeals.

Affirmed.

Finley F. Gibson, Jr., of Louisville, for appellant.

J. E Hutchins and Sidney Baer, both of Louisville, for appellee.

CREAL Commissioner.

J. W Wilhelmi, doing business under the name of Douglas Garage, is appealing from a judgment for $500 recovered against him and John Boyd Kennedy by Paul S. Berns, as damage for personal injuries alleged to have been sustained when he was struck by an automobile owned by Wilhelmi, which Kennedy used as a demonstrator and which at the time was being driven by A. L. Pagliro at Kennedy's direction and invitation.

Wilhelmi operated the Douglas garage in Louisville and sold Hudson and Essex automobiles. Kennedy was his sales manager. On the afternoon of the accident Kennedy drove a new Hudson Terraplane automobile of Wilhelmi's to the offices of the B-Line Cab Company, and invited Pagliro, the president of the company, to look at the car and take a ride in it. Mr. Pagliro's secretary wanted to go to Fourth and Walnut streets, so Kennedy suggested that she accompany them on the ride and they would take her to that point. The three started out with Kennedy driving, but he later turned the wheel over to the young lady and after they had driven over various streets and circled Shawnee park, Pagliro took the driver's seat and drove for some distance and until they reached the intersection of Fourth and Walnut, where the accident occurred.

It is alleged in the petition in substance that Kennedy individually and while the automobile was in his care and custody and under his control turned it over to Pagliro when he knew or by the exercise of ordinary care could have known that Pagliro was an inexperienced and incompetent driver, and that the latter so negligently operated the automobile as to strike and injure plaintiff. As to Wilhelmi it was alleged that at the time of the accident he was the owner of the automobile and that Kennedy, as his agent and servant acting in the scope of his employment, was demonstrating the car for the purpose of making a sale.

By joint answer Wilhelmi and Kennedy made a general denial of the allegations of the petition and affirmatively pleaded contributory negligence upon the part of appellee. Pagliro and the B-Line Cab Company who were also made parties defendant filed answer, but at the close of the evidence the action was dismissed without prejudice as to them. A traverse of the affirmative defense completed the issues.

As grounds for reversal it is first argued that since the petition contains a charge of general negligence coupled with allegations of specific acts of negligence, the evidence and right to recover is confined to the specific acts of negligence alleged; that appellee failed to establish the specific negligence alleged and therefore the court erred in not sustaining appellant's motion for a directed verdict for him.

As to defendant, Kennedy, the only act of negligence alleged and relied on for recovery is in effect that he turned the operation of the automobile over to Pagliro when he knew or in the exercise of ordinary care should have known he was an inexperienced and incompetent driver and incapable of operating it with safety to others. There is a total absence of evidence to sustain such allegation or of facts from which an inference of the specified acts of negligence might reasonably be drawn, unless it be said that it would arise from the fact that Pagliro was driving at the time of the accident, and we do not regard that as sufficient. Men of long experience in operating motor vehicles and who would be generally regarded as safe, competent and efficient drivers may have accidents. An isolated incident is not enough to establish habit, trait, or general course of conduct. On the other hand, there is direct and positive evidence that Pagliro was an experienced driver, that Kennedy had known him for years and had sold him automobiles, and testified that he always found him to be a competent driver. Pagliro testified that he had been driving for over twenty years and for a number of years drove a cab.

Negligence may be pleaded generally, Ingraham v. Blevins, 236 Ky. 505, 33 S.W.2d 357; American Saving Life Insurance Company v. Riplinger, 249 Ky. 8, 60 S.W.2d 115; Illinois Cent. Railroad Company v. Cash's Adm'x, 221 Ky. 655, 299 S.W. 590; and under such general charge any specific acts of negligence may be proved. Louisville & Nashville Railroad Company v. Jackson's Adm'r, 243 Ky. 59, 47 S.W.2d 941; but where special acts of negligence are charged, or where a general allegation of negligence is coupled with a charge of specific acts of negligence, or where such general allegation is followed by explanatory charge of specific acts, plaintiff's evidence and right of recovery will be confined to the specific negligence alleged. Davidson v. Perkins-Bowling Coal Company, 255 Ky. 649, 74 S.W.2d 1; Wigginton's Adm'r v. Louisville Railway Company, 256 Ky. 287, 75 S.W.2d 1046; Braden's Adm'x v. Liston, 258 Ky. 44, 79 S.W.2d 241. Applying the standard established by the authorities cited to the facts in evidence, it is obvious that appellee signally failed to meet the burden of establishing the specific negligence alleged as against Kennedy, therefore, the motion for a peremptory instruction should have been sustained as to him but since he has not been made a party to this appeal, the judgment as to him cannot be reversed on that...