John Christensen v. Hansen , 166 S.W. 1199 ( 1914 )

This suit was brought by appellee against the appellants, John Christensen and J. Rasmussen, composing the firm of John Christensen Co., to recover damages for personal injuries sustained while riding as passenger for hire in an automobile of defendants, and caused by the negligence of the driver of said automobile, who, it is alleged, was acting as the servant and agent of appellants in driving said automobile and conveying plaintiff as a passenger therein. Damages are claimed in the sum of $1,000. Defendants presented general demurrer and various special exceptions to the petition, the nature of which it is unnecessary to state. They further answered by general denial, and specially pleaded the defenses of assumed risk and contributory negligence. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff. This is a companion case with that of Christensen v. Christiansen, decided by this court on April 24, 1913, and reported in 155 S.W. 995. The plaintiff in this case and plaintiff in the case cited were riding in the same automobile and were injured in the same accident, and the identical questions presented on that appeal are presented on this. The evidence sustains the finding of the jury that appellee was injured, as alleged in his petition, by the overturning of an automobile belonging to appellants, in which appellee was riding as a passenger, and that said injury was caused by the negligence of the driver of said automobile in the respects stated in the petition. The evidence further sustains the finding of the jury that appellee by reason of his injuries sustained damages in the amount stated in the verdict. Upon the issue of whether the driver of the car, in accepting appellee as a passenger and undertaking to convey him to his desired destination, was acting as the servant and agent of appellants, or by appellants' authority, the evidence is practically identical with the evidence in the case cited, and we refer to and adopt upon this issue our conclusions of fact in said case as our fact conclusions in this case. As held in the former case, in which a writ of error has been denied by our Supreme Court, the undisputed evidence shows that the driver of the car on the occasion in question was using the car without authority and without the knowledge of appellants, and was not using it in appellants' business, nor in the performance of the duties of his employment, and therefore appellants cannot be held liable for his negligence. This conclusion requires that the judgment of the court below be reversed, and judgment here rendered in favor of appellants; and it has been so ordered. Reversed and rendered.