Wood v. Indianapolis Abattoir Co. of Ky.

• Citation: 178 Ky. 188
• Parties: Wood v. Indianapolis Abattoir Company of Kentucky.
• Decision Date: 04 December 1917
• Court: Court of Appeals of Kentucky

178 Ky. 188

Wood v. Indianapolis Abattoir Company of Kentucky.

Court of Appeals of Kentucky.

Decided December 4, 1917.

Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).

DUFFIN, SAPINSKY & DUFFIN for appellant.

O'NEAL & O'NEAL for appellee.

OPINION OF THE COURT BY JUDGE CLARKE — Reversing.

About nine o'clock p. m. October 15, 1915, the appellant, plaintiff below, while operating an automobile going north on Fourth street, in the city of Louisville, collided with a motor truck, admittedly the property of appellee, going west on Oak street. To recover damages for the injuries sustained by him, plaintiff instituted this action, alleging that the collision resulted from the negligence of the defendant, through its agent in charge thereof negligently and carelessly operating the motor truck so as to cause same to collide with plaintiff's automobile.

At the trial, plaintiff introduced as witnesses in his behalf himself and two occupants of the automobile, by whom he proved that, at the time of the accident, which occurred at the intersection of Fourth and Oak streets, plaintiff was driving his automobile at a speed of about twelve miles an hour; that, as he approached the street crossing, he sounded the automobile horn and looked in each direction along Oak street to see if the way was clear; that the lights upon his automobile were burning; that defendant's truck, without warning of any kind and without its lights burning suddenly came from Oak street into Fourth street at great speed, directly in front of plaintiff's automobile and so close to it that, although he applied the brakes as soon as he was aware of the presence of defendant's truck, he was unable to stop his machine in time to avoid the collision; that his automobile struck defendant's truck, causing him to be thrown forward on the steering wheel, as a result of which he sustained serious injuries; that the plaintiff and the person operating the truck, immediately after the collision, engaged in conversation, in which plaintiff asked him his name, in response to which the party gave to plaintiff a card bearing the name Indianapolis Abattoir Company, the defendant, with the name of F. W. Hill near the left and lower corner of the card; and that the plaintiff thought Mr. Hill was the manager of the company. Plaintiff also introduced in evidence a letter received by him shortly after the accident complained of, which is as follows:

                            "INDIANAPOLIS ABATTOIR COMPANY
                                     of Kentucky
                                BEEF & PORK PACKERS
                                   Louisville, Ky
                                      U. S. A
                                                    "Oct. 25, '15
                "Mr. H. I. Wood
                   514 West Main St
                        City.
                

"Dear Sir: —

"We would like to be advised as to what you intend to do about the repair bill to our machine damage caused by you in a collision at 4th & Oak Street.

"Trusting you will favor us with an early reply.

                                   "Very truly yours,
                                      INDIANAPOLIS ABATTOIR CO.,
                                               of Kentucky.
                                                     F. W. Hill."
                

This letter not only proves defendant owned the truck, but also tends to confirm the qualified statement of plaintiff that Mr. Hill was manager of the company.

At the close of plaintiff's testimony, the defendant entered a motion for a peremptory instruction, which was sustained and a verdict returned for the defendant, upon which a judgment was entered dismissing plaintiff's petition; and from that judgment he appeals.

The evidence introduced by the plaintiff, we think, sufficiently proved that the proximate cause of plaintiff's injuries was the negligent manner in which the defendant's truck was being operated by Mr. Hill, and that Mr. Hill was the manager of the defendant company. The only question involved upon the appeal is whether or not, under proof of these facts, the case should have been submitted to the jury.

The decision of the question depends upon whether or not the burden was upon plaintiff to prove that, at the time of the accident, the defendant's agent, Mr. Hill, was engaged in the business of the defendant; that is, acting within the scope of his authority as its agent, because, unquestionably, defendant's liability depends upon whether or not Mr. Hill was, at the time of the accident, engaged in the business of the defendant, for, although he was an employe or agent of the defendant, the company would not be liable if he was engaged in his own personal affairs, or acting beyond the scope of his authority as its agent. Tyler v. Stephens, 163 Ky. 770; Louisville Lozier Co. v. Sallee, 167 Ky. 499.

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