Anthony v. Kiefner

Decision Date10 July 1915
Docket Number19,603
Citation96 Kan. 194,150 P. 524
PartiesFRED ANTHONY, Appellee, v. IDA A. KIEFNER and LYNN KIEFNER, Appellants
CourtKansas Supreme Court

Decided July, 1915.

Appeal from Sedgwick district court, division No. 1; THOMAS C WILSON, judge.

Judgment affirmed and reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILE--Negligence of Driver--Negligence Not Imputable to an Invited Guest. A mother accepted the invitation of her son to ride in his automobile merely as his guest, and as she had no control and took no part in the management of the automobile she is not responsible for injuries inflicted upon another by the negligence of her son in driving the automobile.

2. SAME--Mother a Guest of Son--Negligent Driving of Son--Personal Injuries--Mother Not Responsible. If the journey had been undertaken as a joint enterprise to accomplish a common purpose for the benefit of both one of them might have been regarded as the agent of the other and she might have been responsible for injuries inflicted by the negligent operation of the automobile, but it is held that her mere request of her son that sometime during the ride he should call at a certain house and obtain a cake that a friend had promised to make for her did not make the trip a joint enterprise nor make her responsible for the negligence of her son nor for injuries to which she did not personally contribute.

3. SAME. The mere fact that the mother, who was sitting by the side of her son and as his guest, did not protest against his action when he drove his automobile at an excessive rate of speed for the distance of a little more than a city block, at the end of which an injury was inflicted, can not be held as culpable negligence on her part which would make her liable for his negligence and the resulting injury.

S. B. Amidon, D. M. Dale, Jean Madalene, and S. A. Buckland, all of Wichita, for the appellants.

W. A. Ayres, and J. D. Houston, both of Wichita, for the appellee; C. H. Brooks, and Earl Blake, both of Wichita, of counsel.

OPINION

JOHNSTON, C. J.:

Fred Anthony brought this action against Ida A. Kiefner and her son, Lynn Kiefner, to recover damages for negligently and carelessly causing the death of his wife, Josie May Anthony. From a judgment against them defendants appeal.

It appears that on May 24, 1913, at about six o'clock p. m., Mrs. Anthony, accompanied by her three small children, was driving westward on the north side of Douglas avenue in the city of Wichita. Upon coming to Poplar street she crossed the intersection diagonally toward the south, passing in front of an eastbound street car which had stopped at the crossing to discharge passengers. Before Mrs. Anthony had driven quite to the west side of Poplar street her buggy was struck by the automobile being driven, in an easterly direction, by defendant Lynn Kiefner, and she was thrown over the top of the automobile and a distance variously estimated by the witnesses at from thirty to seventy-five feet. From the injuries sustained Mrs. Anthony died shortly afterward. There was testimony that the automobile was being run at a rate of about thirty miles an hour and in a careless manner. The jury found that there was nothing to prevent Mrs. Anthony from seeing the approaching automobile had she looked before passing in front of the street car, and also that if either of defendants had exercised reasonable care the accident could have been avoided. The ordinances of the city regulating the speed of automobiles and fixing the right of way of vehicles on the principal streets were introduced in evidence. The evidence tended to prove that the automobile was owned and managed solely by Lynn Kiefner, and that Ida A. Kiefner, his mother, was riding in it at his invitation. Defendants' separate demurrers to plaintiff's evidence were overruled. The jury found for plaintiff against both defendants for $ 5500, and returned answers to special questions submitted by defendants. Separate motions for a new trial were overruled, and defendants bring the judgment rendered to this court for review.

The principal complaint is of the judgment against Ida A. Kiefner and of rulings affecting that judgment. Of the negligence of Lynn Kiefner there can be no question, and while there is a claim that Mrs. Anthony, who was killed in the collision, was guilty of contributory negligence, there is nothing substantial in the claim that it bars a recovery. The most that can be said of his contention is that the testimony raised a question of fact as to her negligence which the jury has decided against him.

In respect to Mrs. Kiefner it is contended that she had nothing to do with the operation or control of the automobile, and therefore her separate demurrer to plaintiff's evidence should have been sustained. She also contends that the verdict and findings of the jury are without support and were probably induced by the instructions of the court about which complaint is also made. She insists that she was a mere guest or passenger in the automobile, and that the negligence of Lynn Kiefner, the owner and driver of the automobile, is not imputable to her. If she was only a guest of his and had no control of the automobile or of the operator his negligence can not be imputed to her. It was determined in City of Leavenworth v. Hatch, 57 Kan. 57, 45 P. 65, 57 Am. St. Rep. 309, that a person riding in a private conveyance by invitation of its owner is not responsible for his action, and that his negligence which contributes to an accident can not be imputed to the guest. In Reading Township v. Telfer, 57 Kan. 798, 48 P. 134, 57 Am. St. Rep. 355, a man accompanied by his wife was driving over a defective highway and she was injured. In her action to recover from the township it was insisted that her husband was guilty of contributory negligence and that she was chargeable with his negligence. There was no personal negligence on her part, but it was claimed that in a sense her husband was her agent, that the visit was undertaken on her solicitation, and that, therefore, negligence on his part which contributed to the injury was imputable to her. Upon these claims the court said:

"The fact, if it be such, that the journey was undertaken at the solicitation of the wife, possesses no weight. It can not be that one who merely secures from another the favor of transportation in a private vehicle takes upon herself or himself all risk of the driver's negligence en route. To so hold would minimize the problem for consideration into a mere question of fact as to which of the travelers solicited the other; the one the favor of a journey, or the other the pleasure of company. If the one who asks to be carried, hence is the master, so on the other hand the one who invites to a ride is also the master. If the maiden who begs of her escort a carriage drive is the mistress throughout the journey, so the gallant who invites his lady would likewise be the master until her safe return. It may be conceded that persons of mutual purpose and equal privileges of direction and control, who travel in the same vehicle in pursuit of a common object, are the agents of each other in such a sense that the negligent act of one in furtherance of the common scheme is imputable to all; but such mutuality or equality of direction and control does not exist in the case of a journey taken by husband and wife." (p. 801.)

It was there recognized that there was a conflict in the authorities upon the question, but it was held that negligence could not be imputed to a guest or passenger, and it was further stated that:

"The doctrine of imputable negligence, except when countenanced by statute, is a fiction of the law which finds small favor with the courts, and has been very infrequently applied in our own." (p. 803.)

In Bush v. Railroad Co., 62 Kan. 709, 64 P. 624, a finding that a lady riding with her escort for mutual pleasure was herself guilty of contributory negligence was upheld, but the decision against her right of recovery was based upon her own negligence and not upon that of another imputed to her. Railway Co. v. Bussey, 66 Kan. 735, 71 P. 261, is somewhat like the case last cited, but, as in that case, the subject of imputed negligence was not presented for consideration nor applied in the decision. The question came up again for decision in Williams v. Withington, 88 Kan. 809, 129 P. 1148, in which it appears that a woman and her children were riding in a buggy drawn by a horse driven by the husband, and a person driving an automobile in the opposite direction negligently collided with the horse and buggy and injured her. In her action to recover damages it was contended that her husband was negligent, and that his negligence was imputable to her and barred a recovery. It appears that she did not exercise or attempt to exercise any control over the horse, buggy or driver, and it was held that she had a right to trust her husband to drive the horse safely, and that his negligence could not be imputed to her. In the late case of Corley v. Railway Co., 90 Kan. 70, 133 P. 555, a man was riding in an automobile as the guest of the driver. In a collision with a railway train the occupants of the automobile were killed. The wife of the guest brought an action on the basis that her husband's death was due to the negligence of the railway company. It was claimed by the railway company that the collision...

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