Suit by Joe Hubble against Daphane Slusher. Judgment for plaintiff, and defendant appeals.

Reversed, with directions to enter judgment for defendant.

RICHARDSON, Justice.

The sole question in this case is the right of Daphane Slusher to a judgment, non obstante veredicto. Her right must be determined by the pleadings and evidence adduced to support Hubble's cause of action as it is alleged in the petition. The motion for a judgment notwithstanding the verdict is appropriate only when a judgment in accordance with the latter is not warranted by the pleadings.

For his cause of action Hubble charged that in October, 1932, "as a guest riding in the automobile of the defendant, then being driven by J. H. Slusher through consent of defendant, the owner, through the gross, reckless, negligent and careless conduct of the driver of the car, same was run off the highway into a deep ditch and against a high embankment, thereby throwing plaintiff against certain metals and hard substances inside of said car and greatly injured him." He fixed his damage at $2,000. The defenses were a denial and a plea of contributory negligence. The plea of contributory negligence was traversed by a reply. This completed the issues.

On a trial before a jury a verdict was returned for Hubble of $1,000.

Daphane Slusher entered a motion for a judgment according to the pleadings notwithstanding the verdict of the jury. Her motion was overruled and a judgment entered in accordance with the verdict. A motion and grounds for a new trial were seasonably filed. A new trial was refused; hence this appeal.

The pleadings and the evidence are before us.

To sustain his cause of action, Hubble testified in his own behalf and supplemented his testimony with that of Sam T. Jackson, Dr. F. R. Burton, and Ben Shorter.

On the night Hubble sustained his claimed injuries, a political speaking was to be held at Barbourville, beginning at 7 o'clock p. m. Daphane Slusher and Hubble lived at Flat Lick, some distance from Barbourville. Their residences were a short distance apart; the exact distance is not shown by the evidence. Sam T. Jackson was a brother of Daphane Slusher. Jackson was in the automobile at the time Hubble claims he sustained his injury. As to the ownership of the car in which he was riding, its procurement from Daphane Slusher, the way and manner of its operation and who was operating it at the time Hubble was injured, the fact it was being operated by J. H. Slusher, and the time and place of the invitation to Hubble to enter and occupy a seat in the car, Sam T. Jackson was asked and answered as follows:

"Q. Where had you got in that car? A. I had got in at my sister's house in Flat Lick.

Q. How did you happen to have that car? A. I wanted to come to Barbourville that evening, or that night, and my car was knocked out, so I happened to walk up to my sister's, and something was said about going to Barbourville, and I told them I would like to come down, myself.

Q. Do you know J. H. Slusher, the young man, who was driving the car at that time? A. Yes sir.

Q. How did he happen to be in the car, driving it, if you know? A. Well, he asked his sister if he could drive the car down to Barbourville.

Q. And, what did she say? A. She said 'all right.'

Q. What is his age? A. About 17, I think.

Q. Did the plaintiff, here, have anything to do with the operation of the car? A. No, he and Babe Slusher were riding in the rear; Jack and myself were riding in the front seat.

Q. About how fast would you think that it was being driven up to the place and where the accident occurred? A. Well, from 40 to 45 miles."

The witness then proceeded to detail elaborately how the accident happened in which Hubble was injured. At the time of the conversation which Jackson narrates, Daphane Slusher lived with her mother and J. H. Slusher, her brother, the driver of the car in which Hubble was riding at the time he sustained his injury, also resided at the home of his mother.

Hubble was not present at the time the conversation occurred between Daphane Slusher and J. H. Slusher. After it was concluded, Jackson, Babe Slusher, and J. H. Slusher entered the car, J. H. Slusher operating it, they went in it about 100 feet to the home of Hubble, where he was invited to accompany the occupants of the car to the political speaking at Barbourville, which he did, and while making the trip, he claims he sustained the injuries for which he sues Daphane Slusher, the owner of the car, was not present at the time he sustained them.

An automobile is not a "dangerous instrumentality" within the rule imposing liability on the owner to an invitee or a licensee of a borrower. Hubble, in neither his petition, nor by the evidence, produced to sustain its allegations, sets forth facts showing the relations of J. H. Slusher and Daphane Slusher. He alleged Daphane Slusher was the owner of the car and J. H. Slusher, with her consent, was operating it at the time he sustained his injuries. The evidence in this respect is no stronger than the language of the petition.

Wherefore, the judgment is reversed, with directions to enter a judgment for Daphane Slusher in conformity with this opinion.

Ky.App. 1934.

SLUSHER v. HUBBLE.