91 Neb. 11 | Neb. | 1912
Action in the district court for Douglas county by Elizabeth A. Neff against Emil Brandéis and Arthur Brandéis to recover damages alleged to have been sustained by the plaintiff as the result of a collision with an automobile of which Emil Brandéis was the owner. There were two trials in the district court. On the first trial the jury were directed to return a verdict in favor of the defendant Arthur Brandéis, and upon the question of the liability of Emil the jury disagreed. On the second trial the plaintiff had the verdict and judgment, and the defendant Emil Brandéis has appealed.
It appears that in April, 1906, Emil Brandéis was the owner of two automobiles, one of which was called the “White Steamer,” which was kept for him by the Powell-Bacon Automobile Company of Omaha, Nebraska, under an agreement which was described by Mr. Powell in substance, as follows: I was to wash the machine, polish it, store it, and keep it ready for running at all times. I was to furnish a man any time Mr. Braudels might call for it. Mr. Brandéis was to pay me so much a month for
It appears from the record that on the 15th day of April.. 1906, the defendant loaned his automobile to his brother, Mr. Arthur Brandéis; that he did not use or even see liis car on that day. Defendant also testified as follows: “Q. Who did use it, if you know? A. My brother. Q. Your brother, which one, A. D.? A. A. D. Q. That is Arthur Brandéis? A. Yes, sir. Q. State whether that car was used at all or out for your personal pleasure or business. A. No, sir. * f * Q. How did your brother Arthur happen to be using this machine on this particular day in question? A. Well, he asked me,'I believe it was in the forenoon, whether he could use my car, and T think he said he wanted to go out to his farm; and I said yes, and he telephoned to the Powell-Bacon garage. Q. In other
With respect to the delivery and return of the machine, Mr. Brandéis further testified: “Why, I had an arrangement at any time I wanted to use either of the cars I would telephone, and they would furnish a man to take me out riding and take the car back to the garage. Q. Who would take the car back? A. The man that ran it— the chauffeur that ran the car. Q. You may state whether or not the driver, Arthur Bell, who drove that car on the afternoon of the day when the collision with Mr. and Mrs. Neff; occurred, had to your knowledge ever driven you? A. Why, I did not know Mr. Bell. Q. And had he to your knowledge driven either of your cars before this particular day? A. I would not know that either. Q. State whether or not you had the same chauffeur continuously? A. No, the agreement was that they were to furnish any chauffeur they had there that was at leisure that they could furnish. There was not any particular chauffeur. Q. So you would have sometimes one and sometimes another? A. Yes, sir. * * Q. You had nothing to do with selecting the particular chauffeur for a particular trip? A. No; I just telephoned them to send the car around.” It also appears that the defendant never paid the chauffeur anything, but paid the Powell-Bacon Company for his services, which payment was included in the $80 per month, as above stated.
It further appears that on the afternoon of the loth day of April, 1906, the Powell-Bacon Company sent the defendant’s automobile out in charge of a chauffeur named Arthur Bell, who testified that, acting upon the order of Mr. Powell, he took the car in question, to the home of Arthur Brandéis, and waited there for some time; that Mr. Arthur Brandéis and his family came out, got into the car, and he drove them to Arthur’s farm; that upon his return he left them at their home, and started to take the car back to the garage; that on his way there he had a
On cross-examination Mr Powell stated: “I cannot give the exact conversation, but the substance was that I told Mr. Brandéis" that he could have the man any time he saw fit, and that the man would be subject to his direction when he left my place. * * * There was something said. I told Mr. Brandéis that he had the direction of the man, and that he' was responsible for the man after he left my place.” On cross-examination the defendant gave the. following testimony: “Q. It was your arrangement with the Powell-Bacon Company that, while he was out in the service with your automobile, running it for you or your friends by your authority, he was doing that for you, was it not? * * A. I presume so. Q. And he would so continue to run the machine for you and by your authority until he returned the machine to the garage, was not that true? And is not that correct under the arrangements you had with the Powell-Bacon Company? A. It would be if he took the car to the garage after he got through. * * * Q. Then, after he got back to the garage and had delivered it, he would then be out of your direction and no longer subject to it? Is not that correct? A. Yes, Powell might send him out. with some other man’s car right away. Q. When he came back and returned the machine to the garage then he would no longer be subject to your control,, his connection with you then ceased for the time being? A. I suppose so.”
The foregoing is the evidence, but not all of it, and about the facts thus established there seems to be no dispute.' At the close of the evidence the defendant requested the court to instruct the jury to return a verdict in his favor. His motion was overruled, and that ruling is now assigned as error. It is strenuously contended by counsel that upon the evidence contained in this record there can be no recovery against the defendant. It appears from the pleadings and the evidence that this suit was brought against Emil Brandéis on the theory that
Counsel for the plaintiff vigorously assert that the cross-examination of the defendant and the witness Fowell established the relation of principal and agent between the defendant and the chauffeur, and was sufficient to sustain the verdict. This seems to have been the theory upon which the trial court submitted the case to the jury. We are of opinion that the testimony of witnesses on their cross-examination,' and upon which plaintiff’s counsel rely to sustain the judgment, is not sufficient to render the defendant liable for the negligence of the chauffeur. It did not change the terms of the agreement, as stated by the witnesses on their direct examination. It was nothing-more than their opinion of the legal effect of that agreement. As such it was entitled to little, if any, consideration. It must be remembered that the evidence clearly shows that the chauffeur, whose negligence caused the injury of which the plaintiff complains, was the hired servant of the Powell-Bacon Company, and not of the defendant; and where, as in the case at bar, the defendant had not used his car for any purpose, but had merely loaned it to another, and had no control over its movements or the conduct of the chauffeur, we are of opinion that the owner of the car would not be liable for the negligence of the servant of another. Again, it would seem clear, from the evidence, that if the chauffeur, in returning the defendant’s car to the garage, had by his negligence injured or wrecked it, the Powell-Bacon Company, whose servant he was, would have been liable to the defendant therefor; and it cannot be said that the chauffeur was his agent to such an extent as to make defendant liable to third persons for the chauffeur’s negligence while returning the car to the garage.
, Eor the foregoing reasons, we are unable to sustain the judgment in this case upon either the huv of master and seiwant, or of principal and agent. We are of opinion that the trial court erred in OArerruling the motion for a directed verdict. The judgment of the district, court is therefore reversed and the cause is remanded for further proceedings in harmony Avith this opinion.
Reversed.