188 Ind. 139 | Ind. | 1919
— Appellee, while riding on the rear seat of a motorcycle owned and operated by one Kale, collided with an automobile owned by appellant Richard W. Martin. The automobile at the time was being driven by appellant Joseph Schofield, who was accompanied by Richard Martin, infant son of appellant Richard W. Martin. Appellee obtained a verdict and judgment against the two Martins and Schofield for personal injuries caused by this accident.
The errors claimed are presented by motion for a new trial. They may be considered under three topics: (1) The verdict is not sustained by sufficient evidence, particularly as to appellant Richard W. Martin, the owner of the automobile. (2) Error in giving and refusing instructions. (3) Misconduct of appellee’s counsel while examining jurors on the voir dire.
So far as the first question is concerned, the allegation in the complaint is that the automobile was being driven at the time of the accident by Martin, a son of the owner, and by appellant Schofield “for and on behalf of and in the business of the said defendant Richard W. Martin.”
This evidence not only does not sustain, but flatly con
At first the courts, like the horses, seemed to be afraid of automobiles and were inclined to stretch the rule of respondeat superior and to hold the owner liable on one pretext or another whether the driver was acting for the owner or not. This departure from the reasonable and practicable rule, that the principal shall respond in damages for the torts of his agent only when the agent is acting for the principal, soon led to absurdities and injustice. And courts have been sitting up nights writing volumes to get back to the correct rule. Witness: Hays v. Hogan (1917), 273 Mo. 1, 200 S. W. 286, L. R. A. 1918C 715, and cases there cited, discussed, distinguished, analyzed and overruled. If the reader is not surfeited when he has examined this authority, then see Reilly v. Connable (1915), 214 N. Y. 586, 108 N. E. 853, L. R. A. 1916A 954, Ann. Cas. 1916A 659; Luckett v. Reighard (1915), 248 Pa. St. 24, 93 Atl. 773, Ann. Cas. 1916A 662; Smith v. Burns (1914), 71 Ore. 133, 135 Pac. 200, 142 Pac. 352, L. R. A. 1915A 1130, Ann. Cas. 1916A 666; Janik v. Ford Motor Co. (1914), 180 Mich. 557, 147 N. W. 510, 52 L. R. A. (N. S.) 294, Ann. Cas. 1916A 669, and notes appended to these cases in Annotated Cases 1916A.
The verdict in this case was not sustained by sufficient evidence, so far as the appellant Richard' W. Martin is concerned.
We now come to the instructions. Among other instructions given at the request of appellee, we find this: “No. 8. It is the duty of the driver of an automobile while driving the same upon a public highway to be
The evidence in this case showed that Richard W. Martin had no business or purpose to serve in allowing his automobile on the night of the accident in question to be driven back to Evansville. The evidence showed that he did not want it to go, but that, when he found that Mr. Schofield had to go back to his business, he permitted Schofield and the boy to take the car. The jury were instructed with these facts before them, that,
The misconduct of counsel was not cured by instruc- ■ tions in this case.
The judgment is reversed, with instructions to the trial court to sustain appellants’ motion for a new trial.
Note. — Reported in 121 N. E. 443. Eights and duties of persons driving automobiles on highway, 13 Ann. Cas. 463, 21 Ann. Cas. 648, Ann. Cas. 1916E 661, 108 Am. St. 215, Automobile as inherently dangerous machine, 19 Ann. Cas. 1229. Liability of owner for' act of driver other than his servant or child, Ann. Cas. 1916A 668. Trial: propriety of comment by counsel on the fact that defendant, other than master, in an action for negligence is insured against liability, Ann. Cas. 1914A 948.