Wyatt v. Hodson

• Citation: 210 Ky. 47
• Parties: Wyatt v. Hodson, et al. Lincoln Bank & Trust Company, Administrator v. Same.
• Decision Date: 02 June 1925
• Court: United States State Supreme Court (Kentucky)

210 Ky. 47

Wyatt v. Hodson, et al.

Lincoln Bank & Trust Company, Administrator v. Same.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

Decided June 2, 1925.

Master and Servant — Automobile Dealer Held Not Liable for Negligence of Salesman Driving Car for Personal Purpose. — Where a proposed customer, to whom defendant automobile dealer's salesman intended to demonstrate a car, was not at his office when salesman called, the salesman was then unauthorized to use the

car for his personal purpose, and, where he did so and met with an accident while using a route beyond that required in the service of the dealer, the latter was not liable for the salesman's negligence in driving the car.

Appeals from Jefferson Circuit Court

MORTON K. YONTS and MERIT O'NEAL for appellants.

EDWARD P. HUMPHREY, P.H. SAVAGE and LOUIS SEELBACH, JR., for appellees.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Affirming in each case.

On June 5, 1922, John Wyatt was in charge of a small wagon from which he sold ice cream near the curb on the east side of Jefferson street in Louisville about midway between Hancock and Clay streets. Charles W. Bruck, a newsboy, was standing by his bicycle near the curb eating some ice cream he had bought from Wyatt. An automobile owned by the Hodson Motor Car Company and operated by Joseph Cornish, a salesman of the company, was driven up the street at forty or forty-five miles an hour and in swerving from the street car track swerved to the side of the street, knocking over John Wyatt's wagon and killing Bruck, who was standing with his back to the approaching car. Wyatt was seriously injured. He filed the first of these actions against the motor car company to recover for his injury. An administrator was appointed for the estate of Charles Bruck and it filed the second action to recover against the motor car company for the death of its intestate. The two actions were heard together and at the conclusion of the evidence for the plaintiff the circuit court instructed the jury peremptorily to find for the defendant. The plaintiffs appeal. The facts are these:

W.L. Bradshaw on June 2nd went to the Hodson Motor Car Company to look at a car. He found one that he thought would suit him but it was in the paint shop. He paid $5.00 on the car in order to hold it if he would want to purchase it on further inspection. He made this arrangement with Joe Cornish, one of the salesmen. On June 5th he took the car out and tried it but it did not work satisfactorily. However, he then paid $95.00 and gave his note for the remainder of the price of the car, secured by a mortgage on it. Cornish agreed to put the car in the shop and fix it so that it would work satisfactorily. After this business was transacted Cornish told Bradshaw that he was going down to the Plaza Hotel in a Columbia touring car to demonstrate it to a man named Mahoney who conducted a restaurant opposite the hotel. He asked Bradshaw to go down with him in the car. Bradshaw's office was at Sixth and Jefferson, only a short distance from the hotel, so he got in the car under an agreement with Cornish that Cornish would bring him back to the garage of the Hodson Motor Company to get the car he had purchased, when the work on it was done. When they reached the Plaza Hotel the proposed customer was out and while they were there Bradshaw, having communicated by phone to his office, decided to go back in the car to the garage and get his car. A friend of his, W.M. Loeher, who was an expert in cars, came along and at Bradshaw's request agreed to go back with him to the garage and look over the car to see if it was all right. Cornish also invited him to go. Before they started, or about that time, a man named Hutchins came along who had bought a tire at the garage a few days before which was too large for his car and he wanted to return it and get a smaller tire. Cornish invited him to get in the car, saying he would take them all out to the garage. They were then near the Plaza Hotel on Fifth street. Cornish drove the Columbia car north on Fifth street to Jefferson and then east on Jefferson. Brook street is six squares east of Fifth. The garage was on Brook street, two and one-half squares south of Jefferson, so that when they reached Brook street all Cornish had to do was to turn south and go two and one-half squares to the garage. But as they went along he said to Bradshaw that he wanted to take him out and show him his apartment, some distance east of Brook on Jefferson. Bradshaw said he didn't...