Railway Express Agency, Inc. v. Bonnell

Shake, J. The appellee, Charles L. Bonnell, sued the appellant Railway Express Agency, Inc., Mack Mace, and William J. Tucker for personal injuries caused by the negligent operation of an automobile by Mace. There was a verdict and judgment against the appellant and Mace and in favor of Tucker. The appellant filed a separate motion for a new trial, which was overruled, and this constitutes the only assigned error. It is contended that the evidence is not sufficient to sustain the verdict and that the trial court erred in giving instructions 3 and 29 tendered by the appellee. There was testimony from which the jury might have found that the express agency had a city office and also a place of business at the union station at Terre Haute. *610 Tucker was general agent and Mace the night foreman at the union station. On the day of the accident Mace concluded his duties at 8:30 o’clock in the morning, at which time his wife’s automobile, which he used for his own convenience in going to and from work, was parked at the station. It was Mace’s intention to use the automobile in going to an office building in the downtown section to pay a personal insurance premium. While Mace was still on the appellant’s premises, Tucker received a complaint by telephone from a fish market relative to a lost shipment of merchandise. Mace overheard the conversation and volunteered to take Tucker to the fis,h market by way of the city office, where Tucker desired to procure a report blank. Tucker accepted the invitation, although there were a number of agency trucks, in charge of drivers, then and there available for his use. Mace drove the automobile without any directions from Tucker as to the manner of its operation or the route to be taken. They proceeded past the insurance office and were en route to the city office of the express agency when the accident occurred. There was no evidence that Tucker directed or requested Mace to provide the means of transportation or that Mrs. Mace’s automobile had previously been used for any such purpose. It is not contended that Tucker was not within the course and scope of his employment or that Mace was not negligent. The governing principle was expressed more than a century ago by Mr. Justice Park, who sat for the Lord Chief Justice of England in the case of Goodman v. Kennell (1827), 3 Car. and P. 167, in which it was said: “I cannot bring myself to go the length of supposing, that if a man sends his servant on an errand, without providing him with a horse, and he meets a friend who has one, who permits him to *611 ride, and an injury happens in consequence, the master is responsible for that act. If it were so, every master might be ruined by acts done by his servant without his knowledge or authority.” There can be no recovery under the doctrine of respondeat superior where the master had no right or power to command or forbid the act or omission that resulted in the injury. Lieber, Exrx., v. Messick (1931), 92 Ind. App. 264, 173 N. E. 238. Since Tucker exercised no control over the operation of the automobile, the question of the appellant’s liability depends upon whether Mace was performing any duty on its behalf or acting in response to any order or direction emanating from it. There is no evidence to support an inference that Mace was acting in the course and scope of his employment when the accident occurred. He had con-eluded his duties for the day and was free to go and do as he chose. His primary objective in using his wife’s automobile was personal and the invitation to Tucker to ride with him was purely incidental. The situation is no different, in legal effect, than if Tucker had been invited to ride with a stranger. The evidence is not sufficient to support the verdict. What we have said requires us to hold that the appellee’s instruction 3 was erroneous and no further discussion of it is deemed necessary. Appellee’s instruction 29 was as follows: “Where a party to a law suit has in his own keeping or at his command testimony presumably favorable to himself, or where said party has the power and opportunity of producing competent evidence or a competent witness or witnesses readily obtainable by him to prove or disprove any material fact and for evidence or testimony presumably friendly to him would or could enlighten the court and jury, failure to produce such evidence or testi *612 mony or to make an effort to do so raises the presumption that the evidence or testimony if produced would be unfavorable to him or his contentions.” This instruction, abstractly considered, is not objectionable, but the rule stated therein cannot be carried to the extent of relieving a party, upon whom rests the burden of proof, of producing some competent evidence of the essential facts. Great American Tea Co. v. Van Buren, ante p. 462, 33 N. E. (2d) 580. In other words, a plaintiff who has failed to make out his case will not be heard to say that it was not necessary for him to do so because the defendant was in possession of evidence which, if it had been produced, would have been sufficient. The judgment is reversed, with directions to sustain the appellant’s motion for a new trial and for further proceedings. Note.—Reported in 33 N. E. (2d) 980.