Opinion
No. 18,229.
Filed May 26, 1952. Rehearing denied June 20, 1952.
1. APPEAL — Presumptions — Presumption in Favor of Trial Court — Sustaining Demurrer to Complaint — Appellate Court Would Assume as True Its Essential Allegations. — On appeal, where it is concerned solely with the propriety of the trial court's action in sustaining the defendant's demurrer for want of facts to the plaintiff's complaint, the Appellate Court would assume as true the essential allegations of the complaint. p. 529.
2. AUTOMOBILES — Control, Regulation and Use — Owners Liability for Acts of Third Persons — Liability Need Not Be Predicated Upon Relationship of Master and Servant or Principal and Agent — Relationship Similar in Nature Sufficient. — Liability of an owner of an automobile for acts of a third party while driving need not be predicated upon the relationship of master and servant or principal and agent, in the exact legal sense of those terms, but a relationship of a similar nature, where one acts for another, is sufficient if the tort-feasor is acting at the time for the benefit and under the direction of the owner. p. 530.
3. AUTOMOBILES — Injuries From Operation — Action — Complaint — Allegation Defendant Driving at "Instance and Request" of Owner — Not Sufficient If Unsupplemented by Showing Defendant Acting for Benefit of Owner or Under Owner's Direction. — In an action for personal injuries sustained when plaintiff while driving his motorcycle was struck by defendant's automobile which was being driven by a person other than the owner where the complaint alleged that, at the time and place of the accident, the driver of the defendant's automobile was driving at the "instance and request" of the defendant which showed a relationship which under some circumstances would render the defendant liable for the driver's negligence even though the legal relationship of master and servant or principal and agent did not exist between them, such allegation standing alone, unsupplemented by a showing that the driver was acting for the benefit of the defendant or under his direction and control, was not sufficient. p. 530.
From the Vanderburgh Superior Court, Robert N. Tracewell, Judge.
Action by William Harper against Joseph Puckett for personal injuries sustained in a collision between a motorcycle driven by the plaintiff and an automobile owned by defendant but driven by another person. From a judgment for defendant, plaintiff appeals.
Affirmed. By the court in banc.
James D. Lopp, of Evansville, for appellant.
Nat H. Youngblood, Herman L. McCray, J. William Davidson, Howard C. Sandusky and Ruth E. Maier, all of Evansville, for appellee.
This appeal is concerned solely with the propriety of the court's action in sustaining the appellee's demurrer for want of facts to the appellant's complaint. Such being the question 1. we assume as true its essential allegations to the following effect: On May 28, 1950, the appellant was driving a motorcycle, in a reasonably prudent and careful manner, through the intersection of Franklin and Third Avenues in the city of Evansville, Indiana, when he was struck and seriously injured by an automobile owned by the appellee but driven at the time and place by one Earl Fambrough at the appellee's "instance and request." The appellee was not in said automobile when the collision occurred and the same was due solely to Fambrough's negligence which was the proximate cause of the appellant's injuries.
The demurrer asserts that these facts do not constitute a cause of action against the appellee, who was the sole defendant below, because it does not appear that, when said accident occurred, Fambrough was the servant or agent of the appellee; that he was acting within the scope of his employment or agency or for the appellee's benefit or under his direction and control. The appellant insists however the fact that Fambrough was driving the appellee's automobile, at the time and place, at his "instance and request" is sufficient to charge the appellee with responsibility for Fambrough's negligence.
There is respectable authority to the effect that, in cases of this kind, liability need not be predicated upon the relationship of master and servant or principal and agent, in the exact 2. legal sense of those terms, but a relationship of a similar nature, where one acts for another, is sufficient if the tort feasor is acting at the time for the benefit and under the direction of the other. Nalli v. Peters (1925), 241 N.Y. 177, 149 N.E. 343; Shearman and Redfield on Negligence, Vol. 2, § 249. See also Wynegar v. State (1901), 157 Ind. 577, 62 N.E. 38.
Guided by the above authority we concede the allegation that, at the time and place of the accident in question, Fambrough was driving the appellee's automobile at his "instance and 3. request" shows a relationship which, under some circumstances, would render the appellee liable for Fambrough's negligence even though the exact legal relationship of master and servant or principal and agent did not exist between them. However such allegation standing alone, unsupplemented by a showing that Fambrough was then acting for the benefit of the appellee or under his direction and control, is not sufficient.
Judgment affirmed.
NOTE. — Reported in 106 N.E.2d 116.