122 Neb. 653 | Neb. | 1932
This action is brought by the plaintiff against the defendants for the recovery of damages for personal injuries resulting from a collision between the automobile in which plaintiff was riding and a truck driven by defendant Geiger, but owned by defendant Whitmore, on the 4th day of June, 1930, at or near the intersection of B and Fourteenth streets, Lincoln. An extensive statement of the allegations of the amended petition and the answers of the defendants is not necessary. It is sufficient to state that defendant Whitmore, owner of the truck driven by Geiger, admitted the ownership of it and that a collision occurred on the date in question, but expressly denied in his answer that at the time of the collision the defendant Geiger was" using the truck in his, Whitmore’s, service. At the conclusion of the evidence the jury were instructed to return a verdict for the defendant Whitmore; the- case was submitted to the jury as to the liability of Geiger, and they returned a verdict against such defendant.
The plaintiff appealed from the judgment of the trial court in sustaining the motion of defendant Whitmore for a directed verdict. This being the only question for our consideration, it is necessary to consider the evidence only in so far as it relates to whether the truck was in the service of Whitmore at the time of the accident.
Whitmore was operating a garage in Lincoln on Fourteenth street a little south of South street, and defendant Geiger was employed by him as a helper. On the day in question the family car that usually called to take Geiger to his lunch did pot arrive and he used Whitmore’s .truck
It is plaintiff’s contention that, when Whitmore gave Geiger permission to take the truck to his home with instructions to return it after lunch, the truck was in the service of Whitmore, and, conceding that Geiger was using it for his own personal convenience while going from his home to the jewelry store on Tenth street, when he turned to go from there to the garage he was operating the truck in the service of the owner within the rule announced in Keebler v. Harris, 120 Neb. 739. We cannot assent to this. In Keebler v. Harris, defendant Harris was an employee of codefendant American Credit Corporation, and had been directed by his employer to repossess a certain Ford car and take it to a garage at 610 South Fifteenth street, Omaha. From his home, Fifty-second and Izard streets, he drove his father’s car to 915 South Forty-eighth street, where he took possession of the car. He then returned his father’s car to Fifty-second and Izard streets; the repossessed car, driven by another boy, following him. After leaving his father’s house, Harris took the repossessed car and drove to several places in Omaha to make
The plaintiff urges, however, that,- since -it -is conceded that Whitmore was the-owner of the truck'arid-'Geiger was' employed by him and" frequently''used the'truck-on the streets in the vicinity of where-the- accident-occurred, he' is presumed to have been using -it on this- occasion - in' the service of -his employer, and that this- presumption is evidence that-would sustain a--verdict for plaintiff..-"Our-attention - -is ■ -called:- to •'cases ' that support ■ this. contention;; Williams v. Ludwig Floral Co. 252 Pa. St. 140; Holzheimer v. Lit Bros., 262. Pa. St. 150; Randolph v. Hunt, 41 Cal. App. 739; Ward v. Teller Reservoir & Irrigation Co., 60 Colo. 47. Thé' great •-weight mf •'•••authority;. however, .'.is-- .to-the contrary, and the decisions of this court are in. accord
“We are now asked-to extend the "(family automobile) doctrine to cases where "an employer permits a favored employee to use, for his. own. pleasure, an automobile kept and ordinarily used in carrying- on the employer’s business. *. * * If we were to hold as requested, it would, tend to put an end to the praiseworthy custom*-of many employers who permit faithful. employees to use occasionally, for their personal enjoyment, automobiles kept, .and ordinarily used in carrying on the employer’s business. * * * But, aside from this particular consideration, we think both reason and authority are opposed to plaintiff’s contention. The extension of the family automobile doctrine to other relationship cannot well be justified upon any principle of the law of master and servant or principal and agent. The owner of an automobile, who loans it to another to use for-purposes personal. to.-the borrowers,.;is neither master nor- principal, -but- merely -UHibailor/iand ' in law. ,is not chargeable with the" consequences of :th'e borrower’s negligence while pursuing his "owniends in his own yvay.”;i , • ■There being no controverted■ questions of -fact." to.,go -.to. the jury, the court propérly; directed a verdict.-for. the/de-; fendant Whitmore/..'"'-'c. ■: b>lu; ':•/ . rú.k">
-""The judginent; of/the'trial!court should be;, .andnq&mitq
Affirmed.