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own, but the business of defendant, making de- | did not feel like it his father drove the fendant liable for his negligence in driving it. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 1210-1216; Dec. Dig. 8

301.*]

Appeal from Circuit Court, Christian County.

Action by Houston Morris, by, etc., against R. T. Stowe. Judgment for plaintiff; defendant appeals. Affirmed.

John T. Edmunds, Southall & Son, and Henry J. Stites, for appellant. C. H. Bush and W. T. Fowler, for appellee.

WINN, J. The appellee, Houston Morris, a child some 12 years of age, in June, 1910, while riding a bicycle, was run down and dragged by an automobile, the property of R. T. Stowe. Both the child's legs were broken, and other injuries were inflicted on him. To recover damages, he brought his action against the owner of the automobile. The jury brought in a verdict in the child's favor for $2,000, and from the judgment on the verdict this appeal is prosecuted.

It suffices to say that there was sufficient evidence before the jury to take the case to them upon the question of the negligence of the driver of the automobile. No serious complaint is made upon this feature of the case; nor is it seriously contended that the damages were excessive, or that there was any error in the admission or rejection of testimony. There is but one question of consequence in the record, and we proceed directly to its discussion.

machine; that he took her driving when he wanted to; that he took his mother if she wanted to go; and that the machine was used by the family for the pleasure of the family. The father testified that the young man operated the car with his permission, and had the authority and right to use it when he wanted to; that his daughter had the like right; and that it was used as a family vehicle. This brief statement gives a fairly clear understanding of the ownership of the car, its uses, and the relationship of the parties to it, and of the father and son to each other in the use of the car. This brings us to the question in the case, i. e., was the son, under the facts stated and at the time of the injury, a servant or agent of the appellant? If he was, his father is liable. If he was not, his father is not liable.

In the first place, it may be said that a considerable part of the discussion of counsel is addressed to the idea that, even though the son were generally the agent or servant of the father in the operation of the car, the father is not liable under the facts stated here, because the son was engaged at the time in an enterprise of his own-the seeking and giving of pleasure to himself, his sister, and their friends, upon an excursion of his own-in which the father had no interest, and which was not in the line or scope of the son's employment. The question ordinarily is a vital one in cases of this character; but it is of no consequence here. The car, at the time of the accident, was For the only ground upon which the father driven by Robert Stowe, the 18 year old son can be held answerable for this act of his of the appellant. With him in the car were son excludes the idea of an independent his sister, Miss Kathleen Stowe, a Miss venture, under the facts detailed. That Henry, who was his first cousin, and a ground is, as contended for by the appellee, couple of other young ladies, who were that the machine was bought and operated friends of his sister. Young Mr. Stowe was for the pleasure of the family; that, at the a deputy in the office of his father, who was time of the accident, the son was engaged the county court clerk of Christian county; in carrying out the general purpose for but on the day of the accident young Stowe which the machine was bought and kept; had been to the office, and finding nothing to and that, as he took it out at the time in do had left without seeing his father. In- pursuance of general authority from his fadeed, he had not seen him at all on that day, ther to take it when he pleased, for the pleasas the young man did not arise for break- ure of the family and himself as a member fast. The father gave him no orders about of it-the purpose for which it had been the use of the car on that day; nor had any-bought-he was engaged in the execution of thing passed between them on that day as to the son's permission or right to use it. He went for the car of his own volition, and at his suggestion his sister and the other young In order that our statement may be clear, ladies arranged for and went on the ride we again repeat that this is the only basis with him. The car was kept by the father upon which it is possible to predicate the for the comfort and pleasure of his family, recovery against the father in the case at including his son and daughter. They had bar; for it is established generally that the the right to use it as often as they liked. father is not liable for the torts of the son, The father knew how to run the car; but committed without his knowledge or authorthe son generally acted as the driver. The ity, express or implied. Nor is it charged in son himself testified that he took his sister the present case that the father had turned driving when he felt like it, and when he the son loose with a dangerous agency, so •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

his father's business, i. e., the supplying of recreation to the members of the father's family.

that the question of whether that state of fact, if proven, would have rendered the father liable is not before us. There is the single question stated. We find that the principle has been a good deal discussed in the different states within the few years that motor vehicles have been in current use. The courts are not in harmony. The question is largely a new one in Kentucky; and we have endeavored to arrive at a correct answer, based upon precedent and upon the general principles of law which affect or are ancillary to a just exposition of the law.

the car for the pleasure of his son and his son's friends. The father's liability was made to turn upon the precise question that we have named as the single vital question in this case. The opinion first remarked the entire accord of authority that the owner of a car cannot be held liable in his absence, except that it be shown that the person in charge of the car not only was the owner's servant, but was engaged at the time in his business as well. The opinion then sets out the rule so aptly that we quote from it somewhat at length as an expression of the view which we have reached as the proper view. It says:

"Should we regard the relationship between the two defendants merely as that of owner and chauffeur-master and servantthe owner should not be held liable for the negligence of the chauffeur, since the evidence shows beyond question that the latter was using the machine merely for his own pleasure. But Ernest [the son] was more than a mere chauffeur. He was the minor son of the owner, and was using the car for his own pleasure, it is true, but with the permission of his father, and for one of the very uses for which his father kept the vehicle. The evidence discloses that the machine was devoted to the use of the family of which Ernest was a member. It was a pleasure vehicle, and, when used for the pleasure of one of the minor children of the owner, how can it be said that it was not being used on business of the owner? It is the practice of parents to provide their children healthful

The spirit of our determination, it may be remarked, is founded upon a Kentucky case, which, though cited but rarely in later Kentucky cases, has been largely cited in the cases from other states, in the text-books, and in the general authority upon the subject. The case is that of Lashbrook v. Patten, 1 Duv. 317. In this case the appellant's minor son, whilst driving, with his father's approbation, the latter's carriage and team, conveying the son's two sisters to a picnic, negligently ran against the carriage of an other. An action was brought against the father for the damage. This court said that "the son must be regarded as in the father's employment, discharging a duty usually performed by a slave, and therefore must, for the purposes of this suit, be regarded as his father's servant." The opinion commented upon the fact that the occupants of the carriage were the members of the father's family, and that the journey to the picnic, which, of course, was purely in the pursuit of pleasure, was undertaken with the father's appro-and innocent amusements and recreations; bation. In the case at bar, the journey was a journey in pursuit of pleasure, of which at least two members of the father's family were the beneficiaries. There had been, it is true, no express consent for the particular journey, but the consent was broader; for it was a consent so general as that it embraced any time and any journey for which the pleasure-seeking young members of the family might see fit to use the car. In consonance with the Kentucky authority named, enlarging the discussion and applying the same principles to the modern automobile, instead of the carriage, the case of Daily v. Maxwell et al., 152 Mo. App. 415, 133 S. W. 351, decided in January, 1911, upon facts largely similar to those proven in the case at bar, establishes the liability of the father. It is interesting to observe the facts in that case and the conclusions reached, as a growth from the Kentucky case. Mr. Maxwell relied upon his son, a boy of 16, to perform the duties of chauffeur to the family. At the time of the accident from which arose that litigation, the son had asked and obtained the consent of the elder Maxwell to take some of his young friends-three girls and a boy-automobile riding. It was the boy's party, and the father had naught to do with it, except to give his consent to the use of

and certainly it is as much the business of parentage to supervise and control the pleasures of their children as it is to give them nurture and education. Had Ernest been taking his mother for a pleasure ride, instead of taking some of his young friends, no one would contend that he was not on his father's business; or, had he been using the car on an errand of his own, such as shopping for himself, or going to school, he would have been on his father's business, since it was the duty of his father to support and educate him. The rule that a father is not liable for the torts of his minor child applies only to cases where the tort is committed without the consent of the parent, and without the scope of any duty he owes his child. We conclude that, in running the car with the consent of his father and within the scope of family uses, Ernest was the agent and servant of his father."

So, in the case at bar, the father had provided his family with this car as a means of recreation and amusement; and the son, in the use of the car for that purpose, was not performing an independent service of his own, but was carrying out what, within the spirit of the matter, was the business of the father.

The case of Moon v. Matthews, 227 Pa. 448,

profit.

[Ed. Note.-For other cases. see Partnership, Cent. Dig. §§ 146-151; Dec. Dig. § 97.*} DISQUALIFICATION 3. JUDGES (§ 53*) WAIVER.

76 Atl. 219, 29 L. R. A. (N. S.) 856, 136 Am. | tiff was entitled to sue for his share of the St. Rep. 902, is in point. In that case the chauffeur, under the direction of defendant's sister, who made her home with him as a member of his family, had taken the car, and was driving his sister with some of her guests, entirely without the knowledge of the owner. It was remarked that the occupants of the car were the defendant's friends and guests of his sister, and that the errand upon which the car was taken was entirely proper and fitting in itself. The master was held liable. There is other general authority to sustain the same position; but the quotation made from Daily v. Maxwell is so excellent and exponent of our view that we do not enlarge upon the authorities.

It is true that there is authority of a most excellent character in direct conflict with the views which we have set out. Notable among the cases are those of Doran v. Thomsen, 76 N. J. Law, 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677, and Maher v. Benedict, 123 App. Div. 579, 108 N. Y. Supp. 228; but the conclusion reached by us is sustained both by the case of Lashbrook v. Patten, from this court, and by what we believe to be the sounder It is not necessary to protract argument. this discussion of the law by any general consideration of the elementary principles, whether contractual or from custom, which create the relation of master and servant, nor to discuss the general but well-settled liability of the master for the servant's negligence whilst in the furtherance of the master's business.

A party who takes part in proceedings involving objections to the pleadings raised by demurrer and by motions to strike out allegations, which resulted under the rulings in a continuance of the case, waives his right to later object for the first time to the presiding judge by reason of facts then known to him. [Ed. Note.-For other cases, see Judges, Cent. Dig. § 232; Dec. Dig. § 53.*]

4. JUDGES (§§ 39, 51*)-DISQUALIFICATION— NATURE.

The cause to disqualify a judge must be a legal and substantial one and of such a character as will prevent the judge from properly presiding in the case, and a party objecting tion to act must state the facts relied on. to the trial judge because of his disqualifica

[Ed. Note.-For other cases, see Judges, Cent. Dig. §§ 184, 186, 224-231; Dec. Dig. §§ 39, 51.*]

5. JUDGES (§ 45*)-DISQUALIFICATION-RELATIONSHIP TO PARTY.

That a plaintiff and the presiding judge were friends, officers of the same church, and members of the same political party, did not disqualify the judge on the objection of defendant. Cent. Dig. §§ 208-212; Dec. Dig. § 45.*] [Ed. Note.-For other cases, see Judges, 6. JUDGES (§ 39*)-DISQUALIFICATION—ACTS

CONSTITUTING.

Defendant, pending his action, approached the presiding judge in the courtroom and protested against the use of the courthouse for the judge was engaged in, and, in response to electioneering proceedings which he had heard the statement of the judge that he did not propose to take any suggestion from the party,

For the reasons given, the judgment of the stated that the judge knew that he was sitting trial court is affirmed.

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A partner who attempts unfairly to acquire a gain at the expense of his copartner by directly making a profit out of the copartner, or by appropriating to himself benefits which he ought to have acquired for the advantage of the firm, commits a breach of faith for which an action by the copartner lies.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 146-151; Dec. Dig. § 97.*] 2. PARTNERSHIP (§ 97*)-OBLIGATION OF PARTNERS.

Plaintiff employed to procure a purchaser of real estate for a fixed compensation contracted with defendant to assist in procuring a purchaser for division of the profits. Defendant secretly procured a contract from a purchaser and, by representations in violation of plaintiff's firm rights, induced plaintiff to release his claim to compensation. Plaintiff discovered the fact that defendant, by virtue of his transactions with the third person, made a profit in making the sale. Held, that plain

as judge in defendant's case, and knew that he
did not intend to give him a fair trial. Held,
that an affidavit stating such facts did not show
grounds for the disqualification of the judge.
[Ed. Note.-For other cases, see Judges,
Cent. Dig. §§ 184, 186; Dec. Dig. § 39.*]
7. JUDGES (§ 51*)-DISQUALIFICATION—AF-
FIDAVIT OF DISQUALIFICATION.

An affidavit by a party to disqualify the presiding judge must state the charges disclosing disqualification with directness and certainty, so that, if false, the affiant would be davit made on information and belief is insufsubject to criminal prosecution, and an affificient.

[Ed. Note.-For other cases, see Judges, Cent. Dig. §§ 224-231; Dec. Dig. § 51.*]

8. TRIAL (§ 228*)-INSTRUCTIONS-REFERENCE TO OTHER INSTRUCTIONS.

Where the court in an instruction authorized a finding for a party under a state of facts therein predicated, it was not error to fail to refer to another instruction in which, under a different finding of facts, the jury were authorized to render a verdict for the adverse party.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 511; Dec. Dig. § 228.*]

9. TRIAL (§ 295*)-INSTRUCTIONS-CONSTRUC

TION.

The instructions must be considered as a whole, and the entire law of the case need not be stated in a single instruction, and it is

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

not improper to state the law as applicable to
particular questions in separate instructions.
[Ed. Note. For other cases, see Trial, Cent.
Dig. 88 703-717; Dec. Dig. § 295.*]
10. TRIAL (§ 242*)-INSTRUCTIONS-MISLEAD-
ING INSTRUCTIONS.

O'Rear & Williams, John M. Stevenson, S. M. Wilson, and James F. Winn, for appellant. Pendleton, Bush & Bush, Allen & Duncan, and Hazelrigg & Hazelrigg, for appellee.

MILLER, J. This is an action by Edward S. Jouett against John G. White to recover one-third of the commissions received by White as compensation for selling 14,589 acres of coal and timber land in Leslie, Harlan, and Letcher counties, for the Burt & Brabb Lumber Company. For many years prior to 1909, Jouett had been the attorney at Winchester, Ky., for the Burt & Brabb Lumber Company. He was also a nominal stockholder and director in that company. The Burt & Brabb Lumber Company of Ken

Where, in an action for a share of the profits realized by defendant in procuring a purchaser of real estate, pursuant to an employment by plaintiff for a division of the profits, the evidence showed that a sale, though nominally made to a third person, was, by agreement between him and defendant, a single sale to defendant, the third person, and his associates, agreed on before the contract of sale was made, and that the conveyance was made to a corporation formed by the third person, defendant, and his associates, and that defend ant referred to such conveyance as a resale, a charge that if there was to be no compensation to defendant on a sale to the third person except on a resale by the third person or defendant, other than the one arranged for be-tucky had bought the Kentucky lands of tween them, the verdict must be for defendant, the Burt & Brabb Lumber Company of was not misleading because of the use of the Michigan; and, in order to finance the deal words "arranged for." quickly, the Kentucky corporation undertook to make a quick sale of those lands. Jouett desiring to make the sale and earn the fee, the company agreed to give him as

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. § 242.*]

11. APPEAL AND ERROR (§ 882*)-REVIEW

INVITED ERROR.

A party requesting an instruction on a compensation for making a sale whatever point, substantially in the terms of an instruc- he might secure above the price of $10 an tion given, may not complain of the instruc-acre, and, to further assist him in making tion given. a sale at an advanced figure, the company

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. agreed to announce and adopt whatever 882.*]

12. DAMAGES (§ 120*)-MEASURE-BREACH OF CONTRACT TO DELIVER PROPERTY.

Where the petition, in an action on a contract for division of profits made by procuring a purchaser of real estate, alleged that plaintiff had demanded of defendant a third of corporate stock received by defendant for making the sale, or its value, and that defendant had refused to deliver the stock, plaintiff, if entitled to recover, was entitled to recover the full value of the stock which defendant refused to surrender.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 291-305; Dec. Dig. § 120.*] 13. EVIDENCE (§ 601*)-SUFFICIENCY-VALUE OF STOCK.

On the issue of the value of the stock of a corporation owning real estate, the testimony of a witness that he had bought two shares at par, and the testimony of another witness that he had obligated himself to buy a large number of shares at par, followed by testimony that the stock. was based on a capitalization at $15 an acre, while the land was worth $20 or $25 an acre, and that there were no debts against the corporation, did not justify the conclusion that the stock was worth more than par.

prices he might quote to his purchasers, and keep, as confidential, the price of $10. For reasons satisfactory to himself, Jouett thought it advisable, in July, 1909, to associate with him in finding a purchaser the appellant, John G. White, and H. C. Thompson and H. G. Garrett, all of whom were more or less familiar with Kentucky lands and prospective purchasers therefor.

Jouett was a lawyer, busily engaged in the practice of his profession at Winchester, and was willing to divide the fee rather than take too much of his time from his practice. By the agreement between Jouett and his three associates above named, any excess over $10 an acre should be divided between them in the proportions of threeninths to Jouett, and two-ninths to each of his three associates. This agreement, however, did not take from Jouett his right to make a sale and thereby earn the entire commission; it only gave his associates jointly two-thirds of the commission in case they produced the purchaser. Several negotiations were started between July and December, 1909, with various prospective purchasers-M. S. Barker of Louisville being one of these prospective purchasers, who was introduced by White. On December 1, 1909, Barker was given a 90-day option, which was extended 30 days longer, to buy the land at $12.50 per acre. This option was to expire April 1, 1910. After the Barker opAppeal from Circuit Court, Clark County. tion had been given, the negotiations with Action by Edward S. Jouett against John Barker were carried on by White in person, G. White. From a judgment for plaintiff, he reporting, from time to time, to Jouett. defendant appeals. Reversed for new trial. It was understood by all parties concerned For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2425; Dec. Dig. § 601.*]

14. EVIDENCE (§ 113*)—VALUE OF CORPORATE STOCK-ADMISSIBILITY.

In the absence of a known market value of stock, it is proper on the issue of value to admit evidence of the value of the assets and indebtedness of the corporation.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 262, 263; Dec. Dig. § 113.*]

that Barker and his associates did not real- a commission or compensation in any event ly intend to buy the land for themselves, out of this sale. On the next day-the mornbut that Barker was acting as a promoter, ing of March 16th-and before going to Jouwith the hope of organizing a company that ett's office, White met Burt at the hotel in would take over the lands at a price in ex- Winchester and talked over the proposed cess of his option price of $12.50 per acre. new sale with him. In the subsequent conIt became apparent in March, 1910, that ference at Jouett's office, Burt showed some Barker had failed in carrying out his plan, hesitation in proceeding with the proposed and that he and his associates were not to new sale and remarked that the sale of the be further considered as possible purchas-property had been left in Jouett's hands, and ers. White went to Louisville on March at this price there would be no compensa14, 1910, and it then became known beyond tion for Jouett out of the sale. Gibbens any further question that Barker and his as- says Burt asked White whether there was sociates were no longer to be so considered. to be any compensation to him in the new White returned to Winchester on the next sale, and White again said there was none night-March 15th-and reported to Jouett, directly, although he might work something in a conversation at the hotel, that Barker out of it in the future. This answer seemed would not be able to complete the purchase satisfactory to all concerned, in the light of the land; and, in the same conversation, of the explanation given by White, and the White stated to Jouett, for the first time, fact that was generally known to all of that he had interested another purchaser, them that White either had already gotten not giving his name, however, but that this control, or expected to get control, of some purchaser would not pay more than the adjacent lands, which he could sell at a minimum price of $10 an acre. White there-profit in case the Burt & Brabb Lumber upon asked Jouett to secure from the Burt Company's lands changed hands. Burt and & Brabb Lumber Company an option at $10 per acre for the new purchaser, whose name he had not yet given. Jouett was somewhat astonished and irritated at what he conceived to be a breach of confidence upon the part of White in disclosing the minimum confidential price of $10 an acre to this new purchaser, and he declined to speak to Burt upon the subject. White, however, immediately went to the telephone, and, having called up Burt, informed him of his proposed new purchaser of the lands at $10 an acre. White then returned to Jouett in the hotel lobby and told him that Burt wished to speak to him over the telephone. Jouett thereupon talked with Burt over the telephone; and, as a result of these conferences, a meeting was arranged for the next daythe 16th of March-at Jouett's offices. While they were still in the hotel, however, Jouett reminded White that a sale at $10 an acre would not give either of them any compensation whatever for making the sale, since that was the lowest net price for which the Burt & Brabb Lumber Company would sell the lands. White conceded that to be true, whereupon Jouett asked him the direct question whether or not he (White) would receive any profit or commission from this new sale. According to Jouett's testimony, White responded that he would not receive any profit or commission on this sale, except indirectly, but that he might receive some indirect benefit by reason of the fact that he had blocked up some other lands in the neighborhood of these lands, which he could probably sell at a profit if this sale was made. According to White's testimony, he answered Jouett's question by saying there would be no commission to him (White) only in case of a resale of the lands. Jouett denies that White said anything about a resale of the land, or that he expected to get

Gibbens, who was an officer of the Burt & Brabb Lumber Company, and Jouett then retired to another room, where Jouett stated to Burt that he would not undertake to stop the sale, and that Burt could go ahead with it at the new price of $10 per acre, so far as he (Jouett) was concerned. They then returned to the other room, and Burt agreed to give the new option at $10 per acre, as desired by White. Burt then said to Jouett that since he had worked a long time trying to make a sale, but without success, and they would need his services in closing it, the Burt & Brabb Lumber Company had decided to give him $2,000 as an honorarium; whereupon Jouett said that while he was not claiming anything, and would not stand in the way of his friends making a sale, he would accept the $2,000 in the same spirit in which it had been offered him. The option was then drawn by Jouett, acting as attorney for the Burt & Brabb Lumber Company.

In preparing this option, White disclosed for the first time that Robert Carnahan, of Louisville, was the new purchaser. As the Barker option extended to and included April 1st, and Barker had not surrendered his option although it was well known that he would do nothing under it, it became necessary to make Carnahan's option operative on or after April 2d. Accordingly, that option required Carnahan to pay $40,000 to the Burt & Brabb Lumber Company between 8 o'clock a. m. and noon of April 2, 1910, as an exhibition of his good faith and intention to buy the lands within 30 days. The second paragraph of section 4 of the option, however, further provided as follows: "If, however, within the aforesaid 30 days, to wit, on or before May 2, 1910, second party decides that he does not care to go on with said purchase, or if within said period the parties

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