Angell v. Hester, 41592

• Decision Date: 23 January 1960
• Docket Number: No. 41592,41592
• Parties: Robert ANGELL, Appellee, v. Scott B. HESTER, Appellant.
• Court: Kansas Supreme Court

Page 1050

348 P.2d 1050

186 Kan. 43

Robert ANGELL, Appellee, v. Scott B. HESTER, Appellant.

No. 41592.

Supreme Court of Kansas.

Jan. 23, 1960.

Syllabus by the Court

1. In a negligence action to recover damages for personal injuries sustained by the plaintiff in a motor vehicle collision the jury returned a verdict for the defendant. The trial court, after hearing argument on the motion for a new trial, reviewed the evidence and concluded it had erroneously instructed the jury on the question of agency, there being no evidence to support a finding of agency. It thereupon granted a new trial. Held: No error.

2. The granting of a motion for a new trial rests so much in the trial court's sound discretion that its action will not be held to be reversible error on appellate review, unless it can be said the party complaining of such order has clearly established error with respect to some pure, simple and unmixed question of law.

3. Where the plaintiff's petition alleges negligence on the part of the defendant in (a) stopping his automobile on the highway, or (b) proceeding at such a slow rate of speed as to impede or block the normal flow of traffic, or both; and the jury in answer to special questions finds the defendant's automobile was not stopped on the highway, and the driver of the vehicle in which the plaintiff was riding was the agent of the plaintiff by reason of erroneous instructions on the question of agency, there being no evidence to support a finding of agency; a new trial is properly granted since there remains an undetermined issue of negligence which, but for the erroneous instructions on agency, may have been favorably found for the plaintiff.

4. An agency relationship, aside from joint venture or partnership, which will justify the imputation of a driver's negligence to his passenger, must be of a master and servant or employer and employee type.

5. An ordinary 'car pool' or 'share-the-ride' agreement is not a contract between the parties which constitutes the driver of an automobile the agent of the passengers.

6. Where special questions submitted to the jury are answered in such a manner as to indicate the general verdict is based upon a finding of agency, upon which the jury has been erroneously instructed, thus imputing negligence of the driver to a passenger, the general verdict does not import a finding in favor of the prevailing party with respect to an allegation of negligence, concerning which there was evidence, but which was not covered by the special questions.

7. The prohibition against slow-moving traffic on a highway pursuant to G.S.1949, 8-534, is not limited in its application only to situations where traffic is approaching from the opposite direction. The statute enjoins any slow-moving traffic which would result in hazard to life, limb or property, regardless of whether the traffic it impedes be approaching from the front or rear, or from both directions.

8. An order of the trial court granting a new trial sets aside the verdict and the answers to all special questions and the case stands for trial upon the issues made by the pleadings.

Frank S. Hodge, Hutchinson, argued the cause, and Eugene A. White, Robert Y. Jones and H. Newlin Reynolds, Hutchinson, were with him on the brief for appellant.

Don Wyman, Hutchinson, argued the cause, and Max Wyman, Hutchinson, was with him on the brief for appellee.

SCHROEDER, Justice.

This is a negligence action to recover damages for personal injuries sustained in a motor vehicle collision on a state highway. The jury returned a verdict for the defendant, after which the trial court granted the plaintiff's motion for a new trial. Appeal has been taken by the defendant from this order.

The only question presented is whether the trial court erred in ordering a new trial.

The established rule in this jurisdiction is that if a trial court is dissatisfied with a verdict it not only has the authority but it is its duty to set such verdict aside and grant a new trial. An order of a trial court allowing a motion for new trial will not be reversed unless this court is satisfied its action was wholly unwarranted and clearly amounts to an abuse of discretion. Further, the granting of a motion for a new trial rests so much in the trial court's sound discretion that its action will not be held to be reversible error on appellate review unless it can be said the party complaining thereof has clearly established error with respect to some pure, simple and unmixed question of law. (Schroeder v. Texas Co., 169 Kan. 607, 219 P.2d 1063; Nicholas v. Latham, 179 Kan. 348, 295 P.2d 631; Gould v. Robinson, 181 Kan. 66, 309 P.2d 405; and authorities cited in these opinions.)

Robert Angell (plaintiff-appellee) was a passenger in an automobile driven by Lawrence Roberts. Orville Oller was also a passenger in the automobile. They were part of an oil field crew and were returning home from work near Great Bend, Kansas, to the vicinity of Hutchinson at approximately 10:30 a. m., on the morning of January 18, 1956. It was daylight, the pavement was dry and the view was clear. Angell, riding in the front seat, was asleep at the time Roberts drove his vehicle into the rear of a pick-up truck driven by Scott B. Hester (defendant-appellant) on U. S. Highway No. 50S, approximately nineteen and one-half miles west of Hutchinson, Kansas. At the time of the accident Roberts was driving from sixty to sixty-five miles an hour in an easterly direction, and the evidence was conflicting as to whether the pick-up truck driven by Hester in the same direction was stopped or proceeding slowly on the highway.

Angell was seriously injured and sought recovery of $124,729.40 from Hester. The answer alleged Angell had accepted and received the sum of $13,000 from Roberts for his injuries and damages received in the accident, whereupon Angell replied admitting this fact and requested that the $13,000 be deducted from the sum sought to be recovered from Hester.

The acts of negligence alleged by Angell in his petition were (1) that Hester's automobile was stopped on the highway, or (2) that Hester was proceeding at such a slow rate of speed as to impede or block the normal flow of traffic, or both. Hester's answer alleged contributory negligence on the part of Angell. It also alleged that Roberts was the agent of Angell and by reason thereof the negligence of Roberts barred recovery on the part of Angell. The answer further alleged that Angell and Roberts were engaged in a joint enterprise and by reason thereof the negligence of Roberts barred recovery on the part of Angell.

The case was submitted to the jury on the plaintiff's theory of negligence.

The evidence did not raise any issue as to a joint enterprise and no instructions were requested by Hester on this theory. He did, however, request instructions on the theory of agency existing between Roberts and Angell and the trial court instructed on agency by its instruction No. 6. Pursuant to request it also gave additional instructions on agency in considerable detail. All of the instructions on agency were given over the objection of counsel for Angell on the ground the evidence on this point was insufficient.

The jury returned a verdict for the defendant answering all the special questions submitted by the court as follows:

'Question No. 1: Was defendant stopped on the highway at the time of the collision? Answer: No

'Question No. 2: If you answer No. 1 in the affirmative, was such a proximate cause of the collision? Answer: * * *.

'Question No. 3: Was Roberts acting as agent of the plaintiff at the time of the collision? Answer: Yes'

We are informed by counsel for Angell in his brief that the jury returned to the courtroom on four different occasions, after the case was submitted to it, for clarification of the court's instruction No. 6 relative to agency.

The trial court after hearing argument on the motion for a new trial took the matter under advisement. After reviewing the evidence in considerable detail, it concluded the evidence raised no issue of agency and consequently the instructions given to the jury on agency were not justified. The trial court thereupon granted a new trial.

Generally, the negligence of the driver of an automobile is imputable to a passenger only where the driver is the agent or servant of the passenger at the time of the negligent act and the act is committed in the scope of the agent's or servant's employment, or when the driver and passenger are business partners or engaged in a joint enterprise and the operation of the vehicle is in the furtherance of the business. Heiserman v. Aikman, 163 Kan. 700, 186 P.2d 252; and 5 Am.Jur., Automobiles, § 494. Apparent language to the contrary in Kendrick v. Atchison, T. & S. F. R. Co., 182 Kan. 249, 262, 320 P.2d 1061, must be construed in accordance with the concept properly expressed in the Heiserman case that 'The basis of joint adventure is agency, but not every case of agency is joint adventure.' 163 Kan. at page 706, 186 P.2d at page 256.

The evidence before the trial court established a 'car pool' or 'share-the-ride' arrangement in which Roberts and the members of his oil field crew, consisting of Angell, Oller and one by the name of Scholler, took turns in driving their respective automobiles back and forth to work, a distance of approximately one hundred miles from their homes. Each one drove every fourth day. On the day in question Scholler left the automobile at Great Bend where he remained and was not in the automobile when the collision occurred.

The trial court in its memorandum opinion correctly analyzed the Heiserman decision to the effect...