Baker v. The Magnolia Petroleum Company

• Citation: 207 P. 789,111 Kan. 555
• Decision Date: 10 June 1922
• Docket Number: 23,819
• Parties: CORA BAKER, Appellee, v. THE MAGNOLIA PETROLEUM COMPANY, Appellant
• Court: United States State Supreme Court of Kansas

207 P. 789

111 Kan. 555

CORA BAKER, Appellee,
v.
THE MAGNOLIA PETROLEUM COMPANY, Appellant

No. 23,819

Supreme Court of Kansas

June 10, 1922

Decided January, 1922.

Appeal from Butler district court; ALLISON T. AYRES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COLLISION--Automobile and Truck--Injuries--Demurrer to Plaintiff's Evidence Properly Overruled. Certain evidence considered and held competent.

2. SAME. In an action to recover damages against defendant caused by a collision between an automobile in which the plaintiff was riding and a truck used in the business of the defendant, held, there was no error in overruling a demurrer to the evidence.

3. SAME--Whether Driver of Truck was Servant of Defendant was Question for the Jury. The defense to the action was that the truck belonged to an independent contractor who was engaged in the truck business and under a contract furnished the truck and driver and the gasoline, for which the company paid him twenty dollars a day. The defendant's evidence showed that it was an oral contract and that nothing more was said than that the company wanted the truck to go to its leases wherever the work was being done. Sometimes one driver was sent by the owner of the truck and sometimes another. The driver reported each morning and gathered up the men in the employ of the defendant and hauled them from town to the place in the country where the defendant was laying a pipe line. The driver stayed at the pipe line and was sent occasionally for drinking water, and transported the tools from place to place. He was sometimes sent back to town on errands. The defendant's testimony tended to show that the boss of the gang of workmen gave the driver no directions as to the way he drove the truck. The driver himself testified that the boss who had charge of the gang directed the operation of the truck and told him what to do and where to go, and when. Held, that the question whether the driver of the truck was a servant of the defendant (although he continued to be the general servant of the contractor and paid by the latter for his work) was a question for the jury to determine from a consideration of all the circumstances under which the truck was hired and used.

4. SAME. The contract by which the truck and the driver was hired being oral, held, that where the evidence is conflicting or where different inferences might well be drawn from the testimony concerning the oral contract, the matter was properly left for the jury to determine.

5. SAME--Facts Which Would Make Defendant Liable for Negligence of Driver of Truck Properly Stated in Instruction. On the facts stated in the opinion, held, that an instruction was proper which charged that if the jury should find from the evidence that the defendant employed or hired a truck with a driver from the owner of the truck, and under the terms of the hiring was to have general charge and control of the truck and driver and to direct generally the work to be done, the time and manner of its doing, and to have full and complete control of the operation of the work it should direct to be done by the truck and driver, the defendant would be liable for damages sustained as a result of the driver's negligent acts when using the automobile in the service of the company.

B. R. Leydig, K. M. Geddes, E. W. Grant, all of El Dorado, B. B. Blakeney, Hubert Ambrister, both of Oklahoma City, Okla., and J. H. Maxcey, of Tulsa, Okla., for the appellant.

J. M. Pleasant, and George J. Benson, both of El Dorado, for the appellee.

OPINION [207 P. 790]

[111 Kan. 556] PORTER, J.:

Cora Baker was a passenger in an automobile owned and driven by her brother on the public road from Augusta to Douglass. She received serious injuries as a result of a collision between the automobile and a truck used in the business of the defendant. She brought suit alleging that the truck belonged to the defendant; that the driver, Fred Howard, was in defendant's employ, and that the collision occurred by reason of the negligent operation of the truck and the negligence of the company in using a truck with a defective brake. The answer was a general denial; also a verified denial that the driver was in the employ of the defendant, and alleged that the truck was owned and operated by an independent contractor. As a further defense it was alleged that certain negligence of the driver of the automobile was imputed to the plaintiff. Issues were joined and there was a trial with a verdict in plaintiff's favor for $ 3,860.42. The court reduced the verdict to $ 2,600, to which plaintiff consented. Judgment was rendered, and the defendant appeals.

The plaintiff's evidence was sufficient to sustain a finding that she was riding as a guest of her brother who owned the automobile, and that the collision occurred through the negligent manner in which the truck was driven and because the brakes were out of repair; that the brakes had been in that condition for a considerable length of time. There was evidence also to show the nature and character of her injuries and to support a finding that she was not guilty of contributory negligence.

The first assignment of error relates to the admission of testimony. Haney, a witness for plaintiff, testified that he was on the truck; the accident occurred about four miles north of Augusta. He was then asked:

[111 Kan. 557] "Q. Are you acquainted with Mr. Crowley, the boss? A. I worked for him for a while.

"Q. State whether or not he was the boss in charge of this car?"

The question was objected to as assuming a fact not proven and calling for a conclusion and opinion of the witness, and misleading. The objection was overruled.

"A. He was in charge of the gang, but Porter Parrish was over him. He was in charge of the gang for the day. Parrish was not there."

Regardless of the form of the question it may be said that the answer to the effect that Crowley was in charge of the gang could not have prejudiced the defendant. The same objections were made to the following question: "State whether or not he directed the operations of the truck?" The answer was: "He told the truck what to do that was on the works."

It is insisted that the question was objectionable because the witness was not asked to state what Crowley did, but to state whether Crowley was in charge of the truck, which was one of the particular questions which the jury would be called upon to determine from the facts; not from the opinion of the witness. We think it was proper to show that Crowley was in charge of the gang riding on the truck and directed generally the...