Priestly v. Skourup

• Decision Date: 08 June 1935
• Docket Number: 32328.
• Parties: PRIESTLY v. SKOURUP et al.
• Court: Kansas Supreme Court

45 P.2d 852

142 Kan. 127

PRIESTLY v. SKOURUP et al.

No. 32328.

Supreme Court of Kansas

June 8, 1935

Syllabus by the Court.

Automobile in proper repair for use on highways is not inherently dangerous instrumentality or agency so as to render owner liable for injuries inflicted by automobile when being operated by another.

Owner lending automobile to one whom owner knows to be incompetent careless, and reckless driver, or had reasonable cause to believe him to be such, is guilty of negligence rendering owner liable to third party injured by driver's negligent operation of automobile (Rev. St. 1923, 8--121).

1. An automobile in proper repair for use upon well-traveled streets and highways is not inherently a dangerous instrumentality or agency.

2. The owner of an automobile who lends it to one whom he knows to be an incompetent, careless, and reckless driver, or had reasonable cause to know or believe him to be such, is guilty of negligence in permitting such party to use, drive, or operate the automobile along and upon the well-traveled public streets of a city, and is liable to third parties who may be injured by such driver in the negligent operation of such automobile.

Appeal from District Court, Crawford County; Leland M. Resler Judge.

Action by F. M. Priestly against N. Harold Skourup and another. Judgment for plaintiff, and defendants appeal.

Ray Bond, of Joplin, Mo., and C. O. Pingry and Carl Pingry, both of Pittsburg, for appellants.

P. E Nulton and R. L. Letton, both of Pittsburg, for appellee.

HUTCHISON Justice.

This is an action to recover damages for injuries sustained by the plaintiff who was struck by an automobile while crossing a street as a pedestrian. The two defendants are father and son. The former is sued as owner of the car, and the latter as the driver thereof. The trial court overruled the motion to strike out certain allegations, and later overruled the demurrer to the petition, from which rulings the defendants appeal.

The only portion of the petition that is involved in this appeal is that which the defendants moved to strike out, and later the demurrer to the petition had reference only to the insufficiency of this same portion. The allegations in other parts of the petition with reference to the relation between the defendants as principal and agent or master and servant need not be considered. The motion to strike out applied to the following part of the petition: "That at the time the said defendant, N. Harold Skourup, struck the plaintiff as hereinbefore set out, the said Chevrolet automobile which the said defendant, N. Harold Skourup, was then and there driving was the property of and belonged to the defendant, N. H. Skourup. That at the time the plaintiff received the injuries and damage complained of and for a long time prior thereto, the exact length of time the plaintiff is unable to state, the said defendant, N. Harold Skourup, was an incompetent, careless and reckless automobile driver, and that the said defendant, N. H. Skourup, knew, or had reasonable cause to know, that said defendant, N. Harold Skourup, was an incompetent, careless and reckless automobile driver, and allowed and permitted the said defendant, N. Harold Skourup, to use, drive and operate said automobile belonging to the defendant, N. H. Skourup, along the public streets of said city, and at the time of the injuries and damage to the plaintiff, the said defendant, N. Harold Skourup, was driving said automobile with the permission of the said defendant, N. H. Skourup."

Appellants cite Halverson v. Blosser, 101 Kan. 683, 168 P. 863, L.R.A. 1918B, 498, where it was held:

"An owner of an automobile is not liable for injuries caused in its operation by others, unless such others were servants or agents of the owner, and acting in furtherance of his business.

"Nor is he liable for injuries negligently caused by persons to whom he loaned the automobile to be used for their own purposes, where it was not being used at the time of the injury under his direction or control, or in any way connected with his business." Syl. pars. 1, 2.

Another case cited by appellants is Watkins v. Clark, 103 Kan. 629, 176 P. 131, where the development of the family use of an automobile was attempted to be connected with business affairs in order to apply the rule of principal and agent, but a demurrer to the evidence was sustained holding that a pleasure trip of a daughter in her father's automobile with his consent did not make the owner liable. It was also held therein that an automobile was not a dangerous instrumentality.

Appellants also rely strongly upon the following part of the opinion in Snyder v. Eriksen, 109 Kan. 314, 316, 198 P. 1080, 1081: "It is fundamental that the owner of an automobile is not required to respond in damages for injuries caused by the negligence of the driver, unless the driver was the servant or agent of the owner, and was at the time acting within the line of his duty and in furtherance of the master's business."

It is urged by appellants that the Legislature of this state has limited those incompetent to manage automobiles to two classes, viz., minors under fourteen years of age, and intoxicated persons, by R. S. 8--121, and that the doctrine of excluding all others when one is expressed applies so as to exclude all other kinds of incompetent persons in the matter of driving motor vehicles. This statute was originally a penal one, but after ten years of use as such the penalty imposed for its violation was repealed, and it has since been "merely a regulation without penal sanction," as was said of it in Burrell v. Horchem, 117 Kan. 678, 232 P. 1042, 1043. In that case it was held: "The petition considered, and held to state a cause of action for damages resulting from an automobile accident, against the owner of an automobile, for permitting it to be operated by his son, who was under 14 years of age, contrary to the provisions of R. S. 8--121." (Syl. par. 1.)

Tice v. Crowder, 119 Kan. 494, 240 P. 964, 42 A.L.R. 893, is also cited by appellants to show that the owner was relieved from liability because the evidence failed to show that the driver was acting in some capacity for the owner and within the scope of the employment.

Appellants further cite the following strong cases, Otoupalik v Phelps, 73 Colo. 433, 216 P. 541, and Davis v. Shaw (La.App.) 142 So. 301, which hold in effect that aside from the relationship of master and servant, "family...