Willis v. Crays

• Decision Date: 11 March 1926
• Docket Number: No. 12268.,12268.
• Parties: WILLIS v. CRAYS.
• Court: Indiana Appellate Court

84 Ind.App. 253

151 N.E. 13

WILLIS

v.CRAYS.

No. 12268.

Appellate Court of Indiana, in Banc.

March 11, 1926.

Appeal from Greene Circuit Court.

Action by Helena A. Crays against Mollie Willis. Judgment for plaintiff, and defendant appeals. Affirmed.

Kessinger & Hill, of Vincennes, and William Vosloh, of Bloomfield, for appellant.

Joseph P. Smith, of Loogootee, Webster V. Moffett, of Bloomfield, and Frank E. Gilkison, of Shoals, for appellee.

NICHOLS, C. J.

It is averred in the complaint that appellee was riding in an automobile driven by another on state road No. 12, near Sandborn, Ind. At said time and place, appellant was driving an automobile by and through her agent and servant, whose name is unknown to appellee, at a high rate of speed and in a careless and negligent manner. Upon approaching the automobile in which appellee was riding, she failed and refused to drive her said automobile to the right side of said road, and failed and refused to give the automobile in which appellee was riding sufficient room to pass the one driven by her as aforesaid, but carelessly, negligently, and with great force and violence ran her said automobile against the automobile in which appellee was riding, turning the same over into a ditch, and throwing appellee from the seat where she was riding against the back of the front seat and the top of said automobile, and fracturing the bones of her forehead, breaking her nose, and greatly bruising, maiming, and wounding her, and injuring her permanently.

There was an answer in general denial, and a trial by jury, which resulted in a verdict for appellee for $1,500, upon which, after appellant's motion for a new trial was overruled, judgment was rendered. The error assigned in this court is the court's ruling on the motion for a new trial.

[1] While the evidence was conflicting there was ample evidence to sustain the averments of the complaint, unless it may be said that the averments as to the agency of the driver were not proven. Appellant does not question the evidence in any other regard. It developed at the trial that the alleged agent was the husband of appellant. Both appellant and her husband testified that, while the automobile belonged to appellant, she had loaned it to him for the trip on which he was going for business of his own, and that he had invited appellant to go with him. It has been decided by this court, in Smith v. Weaver, 124 N. E. 503, 73 Ind. App. 350, in effect, that the mere ownership of an automobile by a wife and its operation by her husband, at the time of an accident, is not sufficient to charge her with the negligence of her husband, in the absence of any showing that the automobile was at the time being operated in the course of her business or pleasure. In Potts v. Pardee, 116 N. E. 78, 220 N. Y. 431, 8 A. L. R. 785, it was held that the fact that the automobile was owned by the defendant was prima facie evidence of her responsibility for the manner in which it was driven, but that such presumption remains only so long as there is no substantial evidence to the contrary. In Roper v. Cannel City Oil Co., 121...