176 N.E. 560 | Ind. Ct. App. | 1931
A rehearing having been granted after a per curiam affirmance, this case is again before the court.
Suit was brought by the appellant against Anderson Oil Company and William R. Wood to recover for personal injuries arising out of an automobile collision. At the close of the plaintiff's case, appellee Anderson Oil Company filed a motion for an instructed verdict. This motion was sustained and the jury was instructed that at the proper time they would be instructed to return a verdict for Anderson Oil Company. The trial proceeded as to William R. Wood, the jury returning a verdict as against him for $5,500. Motion for a new trial was overruled and judgments entered on the verdicts. Vacation appeal properly assigning as error the action of the trial court in directing a verdict and its refusal to grant a new trial for newly discovered evidence.
Appellant contends that there existed between the appellees the relation of principal and agent, master and *368 servant, employer and employee or that the doctrine ofrespondeat superior applies.
The evidence, as disclosed by appellant's brief, which is unchallenged by the appellee, shows that, immediately after the accident, appellee Wood made a telephone call. That, immediately thereafter, a Mr. Jones of the Anderson Oil Company came to the scene of the accident. The evidence further shows that Mr. Jones was president of the Anderson Oil Company. That the truck had a sign "Anderson Oil Co." on it in several places. Fleischman v.Ice and Fuel Co. (1910), 148 Mo. App. 117, 127 S.W. 660; PolkSanitary Milk Co. v. Qualiza (1930),
In the case of Gipe v. Pittsburgh, etc., R. Co. (1907),
The Supreme Court, in Davis v. Mercer Lumber Co. (1905),
This case was cited with approval and followed in the case ofSaylor v. Obendorf (1909),
The law very zealously protects one against whom a motion for a directed verdict is addressed. After saying that such motion is equivalent to a demurrer to the evidence, our courts have held that, "`if there is a conflict in the evidence, then only such evidence as is favorable to the party against whom the demurrer is directed can be considered, and that which is favorable to the demurring party is deemed to be withdrawn.'" Lorber v. PeoplesMotor Coach Co. (1928),
Where all the rights, duties and obligations existing between the parties are couched in a written contract, the construction and meaning of that contract is a question of law for the 2. court and is not a question of fact for a jury to determine. Mondamin, etc., Dairy Co. v. Brudi (1904),
In case of ambiguity in a written contract, or in case of construction thereof by the parties themselves, disclosed by their actions and conduct in connection therewith, parol 3. proof may be offered explaining the ambiguity, and also establishing such construction, and in such event the question of the meaning of the contract in the light of such parol evidence becomes *371
a question of fact to be determined by a jury. Robbins v.Brazil Syndicate, etc., Co. (1917),
But our courts have had this to say as to this rule inCleveland, etc., R. Co. v. Gossett (1909),
"The exception applicable here is well stated by Woods, J., inReissner v. Oxley (1881),
"It has repeatedly been held by this court that in cases where the writing is indefinite, or the language ambiguous, or of doubtful application, the practical interpretation given it by the parties themselves may be shown by parol, and that the construction and application given by them should be received with great, if not controlling, weight. Gaylord v. City ofLafayette (1888),
In this case the evidence consisted both of a written contract between the appellees and parol evidence of their conduct. Where there is a written contract between the alleged 4, 5. principal and agent, this does not necessarily govern the question, and the relation of respondeat superior may depend entirely upon the conduct of the parties, for persons cannot be in fact principal and agent or master and servant and the superior escape liability by going through the form of a written contract. So the court here should have considered the entire situation and all the circumstances, including the written contract, and if, from such a consideration, there was any construction which a jury could legitimately have placed thereon which would, under any view of the evidence, have warranted a verdict for the plaintiff, it was error to direct a verdict.
In the case of Anderson v. Foley Bros. (1910),
See, also, Brodwell v. Webster (1915),
"If a responsible party, having work to perform, the execution of which is necessarily attended with danger, undertakes to avoid liability for injury to third persons by letting the contract to an irresponsible party, he cannot be permitted thus to take advantage of his own wrong and escape the consequences of his act, because the making of the contract may well be regarded as a fraud on his part. Kellogg v. Payne,
"In actions to recover damages for injuries caused by the alleged negligence of the master, where the defense is that the carelessness was that of an independent contractor, a court will not hesitate carefully to scrutinize the substance of the contract and all the attending circumstances in order to determine the actual relation which the alleged master sustained to the person employed. The mere fact of nominal employment by an independent contractor will not relieve the master of liability where the servant is in fact in his employ. Nelson v. AmericanCement Plaster Co., 84 Kan. 797 (115 P. 578)."
Appellants have also assigned as error the overruling of the motion for a new trial for newly discovered evidence. Immediately after the trial, the appellant diligently and speedily 6-8. ran down leads disclosed during the trial and discovered much evidence that they believed would be helpful in a new trial. They found, as is set up in the various affidavits, that many persons dealt directly and only with the Anderson Oil Company and that Wood did nothing as far as some customers were concerned but deliver the products. They found that there was on file in a court of an adjoining *374 county a complaint against a man named Hall (presumably a customer of Wood's) in which the complainant, Anderson Oil Company, alleged that gas was "sold and delivered to the defendant by the plaintiff Anderson Oil Co. at the special instance and request of this defendant." They found that the Anderson Oil Company had a mortgage only on the chassis of Wood's truck, and that they (the oil company) owned the tank, buckets and equipment. They found that Wood signed sales tickets of the Anderson Oil Company as "Anderson Oil Co. by W.R.W." That, in exhibits set out in the suit above referred to, the name of W.R. Wood appears under the heading "Driver." Appellees say that appellant did not show diligence in discovering this new evidence and, therefore, it should avail him nothing. It appears that they took an examination of W.R. Wood and that, on the points they later discovered, he could not remember at the time of said examination. Appellant employed local counsel to assist the counsel in chief from adjoining counties, all of whom, it must be presumed, made some preparation for the trial. Let us at least assume that they did not go into court without preparing their case to the best of their ability. Appellees say that this complaint and mortgage were of record and by the exercise of reasonable diligence it could have been discovered. Is it the duty of parties or counsel to examine all the records of a county to see that they disclose something advantageous? This would, in some instances, mean that an abstractor should be hired to ascertain the contents of all the records in the recorder's office. The cases hold that reasonable diligence must be exercised and we hold that that was done here.
Counsel examined the records of the drivers' license department and discovered a statement by Wood that he was the owner of the truck. He also told them this under oath. Counsel say in their affidavit that they *375
have discovered new evidence which they could not, with reasonable diligence, have discovered and produced at the trial. The word new means evidence new to them or their client and implies a prior lack of knowledge. Appellee Anderson Oil Company filed a counter affidavit and alleged that none of the facts discovered by appellant were actively concealed. There are many facts which are known to some people which would be of great benefit to others and could be known if search was made in certain places, but we believe that litigants are not supposed to make an inexhaustible or perfect search before they go into a trial. Reasonable diligence is all that the law requires. True these facts might have been discovered by reasonable diligence, but it is just as true that, by the exercise of reasonable diligence, they were not discovered. By the exercise of reasonable diligence it might have been discovered that the earth was round, but it took a long time for Magellan to prove what reasonable diligence was in such a case. What may appear reasonable at one time may be extremely unreasonable in other circumstances. In the case of State v. Stowe (1891),
The evidence as disclosed by the affidavits is material and would probably lead to a different result. Hence, the court erred in refusing to grant a new trial. Simpson v. Wilson
9. (1855),
For both reasons above discussed, this case is remanded to the trial court, with instructions that a new trial be granted. *377