
    Webb v. Daniel’s Adm’r.
    Nov. 28, 1941.
    
      Wells & Wells and Jerry A. Hogan for appellant.
    C. F. Pace for appellee.
   Opinion of the Court by

Morris, Commissioner—

Reversing.

This is a second appeal. In our first opinion we reversed solely on the ground that under the proof there was no liability as against Mrs. Y^ebb, the owner of the car which her husband was driving at the time Troy Daniel was injured by being struck by appellant’s car.

Our opinion was based on the principle that the husband was not operating her car at the time under a general permission from the owner for purposes or convenience of the family. We also said:

“Even if we assume that the unusual relationship between appellant and her husband at the time [and place] of the accident was such as to make the family purpose doctrine applicable, nevertheless Webb was in law the head of the family, using a motor car of another member of the family on his own affairs, and not on the business of the owner.”

The “unusual relationship” had reference to the fact that there had been a secret marriage, and the husband and wife were not living under the same roof, for the reason as disclosed, that she was employed by a company which had a rule against employing married women.

Our opinion on the first appeal, which recites the facts, is reported in 261 Ky. 810, 88 S. W. (2d) 926. As noted therein the judgment we reversed was for $25,000. The fact is not disclosed in the record, but we gather from appellant’s brief that a second trial resulted in a verdict for $3,000, which was set aside; the last trial resulted in a verdict and judgment for $10,000, from which this appeal is prosecuted. The statement as to the outcome of the second trial, taken from the brief, is not denied, since appellee has not filed brief, though more than once notified of default.

In reversing the former judgment, after reviewing the evidence and stating applicable law principles, we said: “It follows that appellant was entitled to tbe directed verdict she requested. ” As we read tbe evidence on tbe vital point, and comparing it with tbe evidence adduced on tbe first trial in respect to tbe manner of ob ■ taining and using appellant’s car by tbe husband just prior to tbe accident, we fail to find any which would have tbe effect of changing our conclusion in respect of either principle or rule stated. In fact we find that tbe mother, Mrs. Beulah Webb, did not testify on the first trial, but in tbe instant case did testify on one point that was not made clear on tbe other trial.

We said:

“Appellant’s husband evidently at tbe request of bis mother came to appellant’s office and secured tbe only key to tbe automobile, for tbe purpose * * * of taking Mrs. Kirk [a sister of tbe mother] to tbe cemetery. ’ ’

On this trial she said that on tbe day of tbe accident tbe son was at her home and sbe told him to go and get tbe key to tbe car. Sbe bad asked tbe daughter tbe day before for tbe loan or use of tbe car for the purpose of taking Mrs. Kirk to tbe cemetery. Sbe knew nothing of tbe diverted use to which tbe husband put tbe car, before or at tbe time of the accident. Tbe mother makes it plain that it was purposed to use tbe car to take tbe sister to tbe cemetery where her husband was buried, and there is no showing that tbe automobile was kept for tbe business or convenience of tbe mother-in-law. The proof is otherwise.

We are of tbe opinion that there was no material difference in proof adduced on tbe former and this last trial on tbe points upon which we reversed. Certainly not enough to fasten negligence on tbe owner of tbe car under any principle or doctrine known to us. Since this is true, it follows that tbe trial court should have sustained appellant’s motion for peremptory instruction made at the close of appellee’s testimony, and renewed at the close of tbe case. Chesapeake & O. R. Co. v. Prater’s Adm’r, 269 Ky. 174, 106 S. W. (2d) 625; Moran’s Ex’r v. Moran, 238 Ky. 403, 38 S. W. (2d) 207; City of Louisville v. Redmon, 282 Ky. 1, 137 S. W. (2d) 350, and numerous cases cited under Appeal and Error, Kentucky Digest Key Number System 1097 (1), dealing with “law of case” rule.

There are several grounds for reversal; one based on irregularity in formation of the jury panel; this is not pressed. Another is based on the fact that the court, in the reformation of the jury made prejudicial remarks. There is no likelihood of recurrence. Other questions raised as to pleadings and claimed prejudicial instructions are not commented upon, but reserved and the judgment is reversed, again expressing the opinion that appellant was entitled to a directed verdict.

Judgment reversed.  