Williams v. . Blue

*453 Bbowbt, J. Tbe ground of demurrer is that tbe complaint fails- to state a cause of action as to tbe demurring defendants, Fannie A. Blue and J. W. Graham. Tbe demurrer of tbe defendant Fannie A. Blue sets forth that it appears upon tbe face of said complaint and from tbe allegations thereof that this defendant was a guest in tbe automobile referred to in tbe complaint at tbe time of tbe negligent acts complained of by the defendant Halbert Blue; and said complaint does not allege that this defendant participated in any respect in tbe negligent acts of tbe said Halbert Blue or in any way directed tbe commission of such negligent acts, or omitted to perform any duty owed by this defendant to tbe plaintiff in connection therewith, and fails to allege that this defendant had such control .and direction of said automobile or said chauffeur, or assumed such control and direction of said automobile and chauffeur, as to be considered as practically in exclusive possession of said vehicle, and does not allege that this defendant had authority to control and direct the conduct of said chauffeur and tbe movement of said automobile. The grounds of tbe demurrer of defendant Graham are that tbe complaint fails to state that be was the owner of the automobile or that tbe defendant Halbert Blue acted as bis chauffeur, and that it appears from the whole complaint that he was only a guest in the oar and exercised no control or direction over it. The allegations of the complaint are so interwoven as to each defendant that it is difficult to separate and analyze the grounds of their individual liability. The complaint alleges that the defendant John Blue was tbe owner of tbe automobile that collided with that of plaintiff and caused serious injury, and that such collision was caused by defendant Halber.t Blue’s negligence, who was acting at tbe time as chauffeur for defendant Fannie A. Blue. Tbe complaint further alleges that at the time of tbe collision defendant Graham was in part directing tbe operation of tbe automobile. While tbe allegations as to -defendants Fannie Blue and J. W. Graham are rather meager, they are sufficient, we think, to require an answer upon their part. Ownership of an outomobile is not essential to charge one with responsibility for its operation. Tbe question is, was Fannie A. Blue in actual control of tbe machine? One in charge of operation of a motor vehicle, although be is neither tbe owner nor tbe person actually operating it, is nevertheless liable for injury sustained by *454 third persons by reason of its negligent operation, as the person actually operating the vehicle will be deemed his servant irrespective of whether he employed him or not. 28 Cyc., page 40. If it should turn out upon the trial that defendant Fannie A. Blue was exercising no control over the machine or chauffeur and was occupying it simply as the wife of John Blue and with his consent, then she would not be liable. As to defendant Graham,_ the allegation of the complaint, as we read it, is that'he was actually assisting in operating the machine at the time of the collision. If it should turn out upon the trial that he did not assist in directing the operation and course of the machine at the time of the collision he would not be liable. The defendants will answer over. Reversed.