Lake v. Smith

STEINFELD, Judge. On December 14, 1960, appellees Anna and Pascal Smith were injured in an automobile-truck accident on a public highway near the entrance to a farm. The Smiths sued Alex Rose as the driver, and Stanley Lake as the owner of the truck and employer of Rose. On the trial Lake was — 119 — dismissed on his motion for a directed verdict but verdict was returned against Rose in the amount of $19,991.12 in favor of Anna Smith and $2,500.00 for Pascal Smith. Judgment was entered on that verdict whereupon the Smiths appealed, complaining that dismissing Lake was error. In an unreported opinion we held that from the evidence produced at the trial “ * * * the jury could reasonably have found that Rose was the employee of Stanley Lake and that that question should have been presented to the jury.” On the second trial the jury rendered a verdict against Lake and he was adjudged liable to the Smiths in the same amounts adjudged against Rose. Lake appeals. We reverse. The “law of the case” rule requires that we make comparison of the evidence at the two trials to determine if the substance and probative effect of that at the second trial was equal or superior to that of the first. The rule does not prohibit us from determining whether the evidence on the second trial authorized submission to the jury. “ * * * (T)he former opinion becomes the law of the case * * * only where the facts are substantially identical, or the same, upon the trial of each case.” Reibert v. Thompson, 302 Ky. 668, 194 S.W.2d 974 (1946); Cf. Gossett v. Com., Ky., 441 S.W.2d 117 (1969). We have reviewed that evidence and find it less favorable to the Smiths than on the first trial, and are of the opinion that there was insufficient proof of probative value on which a jury could find that Rose was employed by Lake or that he was in the course of Lake’s business at the time the accident occurred. On the first trial the relationship of Lake and Rose was discussed and it appeared that there was enough evidence to support a verdict that Rose was the servant or agent of Lake and on his business when the accident occurred. Our former opinion indicated that Lake had an ownership interest in the tobacco Rose was to help strip. However, on the second trial the facts were more fully developed and clearly showed the contrary. In L. & N. R. R. Co. v. Mattingly, Ky., 339 S.W.2d 155 (1960), we said that “The evidence adduced * * * on the second trial was clearly more positive and * * * ” so it was here. The evidence presented on Lake’s second trial showed that the truck which was driven by Rose was owned by one Beechum. Lake, who was interested in buying a truck, had taken possession of the vehicle to try it in his farm business. Lake provided gasoline and maintained the truck. He permitted Rose to use it for various purposes and to keep it overnight. Lake owned and operated his own farm. Rose was a tenant on another farm owned jointly by Lake and his brother and sisters, of which farm Lake was the general manager. Rose rented the house for money rent but served as a handyman, sometimes working on the farm owned by the Lake family and sometimes working for others in the neighborhood. When working for Lake he was paid by him. Vernon Long was a tenant on a farm owned by Doctor Willard Lake. Long had helped raise tobacco on and had worked on the doctor’s farm. Long needed help in stripping his own tobacco which was originally stored on the farm on which he was a tenant but for convenience was moved to a barn on Stanley Lake’s farm. Long ar-. ranged for Rose to help him and he agreed to pay Rose $4.00 a day for his services. Rose was on his way to work for Long when the accident happened. Both Long and Lake testified that Lake had no interest whatsoever in the tobacco which Rose was to help strip. We find no evidence that Rose was engaged by or on a mission for Lake and nothing to connect Lake with Rose’s activities at the time of the accident except that the truck had been loaned to Rose by Lake and was gassed and maintained by Lake. Rose was not a regular employee of Stanley Lake although on occasions he had performed services for him. The burden was on the plaintiffs below to prove a relationship between Rose and Lake at the time — 120 — the accident occurred which would make Lake liable for the negligence of Rose. They failed to meet that burden. Under the rule announced in Packard-Louisville Motor Co. v. O’Neal, 248 Ky. 438, 58 S. W.2d 630 (1933), Lake was not responsible for the injuries and damages Rose caused. Also see Johnson-Kitchens Ford Corp. v. Shifflett, Ky., 462 S.W.2d 430 (1970). The motion made for a directed verdict should have been sustained and the court having failed to do so Lake should prevail on his motion for a judgment notwithstanding the verdict. It is unnecessary to consider or pass on the other issues presented. The judgment is reversed with directions to enter a judgment in favor of Lake. MILLIKEN, C. J., and NEIKIRK and PALMORE, JJ., concur. EDWARD P. HILL, Jr., OSBORNE and REED, JJ., dissent.