Saunders' Executors v. Armour & Co.

295 S.W. 1014, 220 Ky. 719, 1927 Ky. LEXIS 606

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 24, 1927
• Status: Published

Opinion

Opinion op the Court by

Judge Logan

Affirming.

J. W. Saunders boarded a street car on East Main street in Lexington on tbe morning of October 22, 1924. He requested tbe conductor to stop tbe car east of tbe intersection of East Main street with Rose street so that be might get off and go across tbe street and return to tbe car befor it started. Tbis tbe conductor agreed to do. Tbe car was stopped before it reached tbe intersection of Rose and Main streets, and Saunders got off tbe car and went around in front of it, when be was struck by a Ford runabout automobile driven by tbe appellee F. A. Berkley. Tbe automobile belonging to Armour & Co., and that company was made a defendant in tbe suit to remover damages. Berkley was an employee of Armour as branch bouse manager at tbe time of tbe accident, having full charge and control of its plant in tbe city of Lexington. At tbe conclusion of tbe evidence offered by tbe appellees, tbe court gave a peremptory instruction to tbe jury to find for Armour & Co. Tbe case went to tbe jury as to tbe appellee Berkley, and a verdict was returned in bis favor.

Tbe complaint made by appellants is directed toward tbe instructions given by tbe court in the first place, and in tbe second place to tbe verdict of tbe jury on the ground that it was flagrantly against tbe evidence.

The chief complaint made by appellants is about the first instruction given by the court. That instruction required the appellee to operate the car at a reasonable rate of speed, having- a due regard for the traffic and use of the highway at the time. It is the contention of appellants that the court should have instructed the jury that it was the duty of the defendant to run his car at a rate of speed not to exceed 15 miles an hour. Sectio'n 2739g-51, Ky. Stats., prohibits the operator of a vehicle bn a public highway from driving such vehicle at a greater speed than is reasonable and proper having regard for the traffic and the use of the highway, but there is a further provision in that section relating to highways 'passing through the closely built-up public portions of 'a city or town which limits the rate of speed of passenger automobiles thereon to not exceeding 15 miles an hour, and, if the rate of speed is greater than 15 miles an hour, it is prima facie evidence of unreasonable and improper driving. If it is prima, facie evidence of an unreasonable speed to show that a passenger automobile was driven at a greater rate of speed than 15 miles an hour, the burden then shifts to the operator of the automobile to show that such a rate of speed was not unreasonable and improper, taking into consideration the traffic and use of the highway. If this be true, the instructions of the court in such a case should take care of the question. Appellants rely on the case of Hornek Bros. v. Strubel, 212 Ky. 631, 279 S. W. 1087. That opinion clearly states the law governing such cases.

A party to a suit may not ask the court to give an instruction and thereby invite error and make complaint of the error so invited thereafter. Appellants moved the court to give an instruction which is in substance the same as the first instruction given by the court. We find this language in the instruction offered by appellants:

“It was his further duty to operate said car at a rate of speed which, under the circumstances, and conditions at the place of the accident complained of was reasonable and proper.”

The court, on the question of speed of the car, gave substantially the instruction asked for by appellants. Nowhere did appellants ask for an instruction such as ’they now insist should have been given. They are precluded from complaining about it now. Corlew’s Adm’r v. Young, 216 Ky. 237, 287 S. W. 706; Otte et al. v. Guil ford et al., 209 Ky. 33, 272 S. W. 41; L. & N. R. R. Co. v. Smith’s Adm’r, 203 Ky. 513, 263 S. W. 29, 35 A. L. R. 1238.

It is further urged that the court was in error in. giving an instruction on contributory negligence. Without stating the facts, we express the opinion that the facts in the record justified the giving of such an instruction. What has been said about the first instruction given by the court is also applicable, as the appellants include in the first instruction offered by them an instruction on contributory negligence. The appellants could not, in the lower court, offer an instruction on contributory negligence, thereby inviting the lower court to give it, and then complain here because he complied with their request.

Complaint is made because the court instructed the jury to return a verdict for the appellee Armour & Co. Evidently this instruction was based upon the evidence showing that at the time of the accident .the appellee Berkley was not acting within the course of his employment nor engaged in the business of his employer. Berkley was the general manager of Armour & Co. ’s plant in Lexington, and had general charge and supervision of its business in that section of Kentucky. He had been acting in that capacity for a number of years. He used the automobiles of the company visiting other plants within his territory and looking after the business of his employer. At times he used an automobile of the company in going to his home at night and returning in the morning. On the night preceding the accident he went to his home in an automobile of the company, and the. next morning he was taking Ms son to school in the automobile, with the intention of going from the school to his place of business. The appellee Armour & Co. introduced a number of witnesses who testified that it was against the rules of the company for any of its employees to use the automobiles belonging to the company except upon the business of the company. Written instructions were sent out. from time to time by Armour & Co., forbidding the use of its automobiles, by its employees for the personal use or pleasure of the employees. It is insisted that this evidence was not competent, but we think it was. If it was the rule of the company that the employees should not use its automobiles except on busi mess of the company, it was proper to show such instructions either by written or by oral evidence.

A party is responsible only for the acts of another when the relation of principal and agent or master and servant exists. Where it is sought to hold one responsible in damages for what another person has done, the party seeking to recover must establish the relation of master and servant or principal and agent, if it is denied. The burden was on appellants to establish that Berkley at the time of the accident was the agent or servant of Armour & Co., and that at the time of the accident he was acting within the scope or apparent scope of his authority. It is shown that the company did not allow the use of its automobiles by its employees except when they were engaged on business for the company. There is nothing in the record to show that Berkley was using the automobile at the time of the accident with the consent of the company. The evidence does not show that Berkley was on the business of the company when the accident happened. This case cannot be distinguished from other cases holding that the master was not responsible for the acts of the servant when the servant was not engaged in the business of the master. Mullen & Haynes Co. v. Crisp, 207 Ky. 31, 268 S. W. 576; Crady v. Greer, 183 Ky. 675, 210 S. W. 167; Keck’s Adm’r v. Louisville Gas & Electric Co., 179 Ky. 314, 200 S. W. 452, L. R, A. 1918C, 654; Louisville Lozier Co. v. Sallee, 167 Ky. 499, 180 S. W. 841; Eakin’s Adm’r v. Anderson, 169 Ky. 1, 183 S. W. 217, Ann. Cas. 1917D, 1003; Tyler v. Stephan’s Adm’x, 163 Ky. 770, 174 S. W. 790.

The court did not err in instructing the jury to return a verdict for Armour & Co.

Judgment is. affirmed.