Bergstresser v. Van Hoy

• Citation: 45 P.2d 855,142 Kan. 88
• Decision Date: 08 June 1935
• Docket Number: 32313.
• Parties: BERGSTRESSER v. VAN HOY et al.
• Court: United States State Supreme Court of Kansas

45 P.2d 855

142 Kan. 88

BERGSTRESSER v. VAN HOY et al.

No. 32313.

Supreme Court of Kansas

June 8, 1935

Syllabus by the Court.

Secondhand automobile dealers selling automobile known by dealers to be in condition so defective that operation on highways menaced safety of traveling public held not liable to pedestrian struck and injured by buyer using automobile without repairing it (Rev. St. 1923, 8--121; Rev. St. Supp. 1933 8--122).

A firm of secondhand dealers in automobiles sold to a buyer an automobile known by the dealers to be in a condition so defective that operation of the automobile on the highways menaced safety of the traveling public. The buyer used the automobile, without repairing it, on a street of a city, and while doing so, struck and injured a pedestrian. Held, the facts stated are insufficient to constitute a cause of action for damages in favor of the pedestrian and against the dealers.

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

Action by E. Bergstresser against J. W. Van Hoy and another. From an adverse judgment, defendants appeal.

Judgment reversed and cause remanded, with directions.

P. E Nulton and R. L. Letton, both of Pittsburg, and Douglas Hudson, of Fort Scott, for appellants.

Walter B. Patterson, of Fort Scott, and C. O. Pingry and Carl Pingry, both of Pittsburg, for appellee.

BURCH Justice.

The action was one by plaintiff to recover damages against defendants for personal injuries inflicted on plaintiff when struck by an automobile operated by a third person. A demurrer to the petition was overruled, and defendants appeal.

The petition alleged that defendants were engaged in buying and selling new and secondhand automobiles, and maintained and operated a garage and repair shop as part of their establishment. Merle Young, who was nineteen years old, was an employee of defendants, in what capacity, whether as mechanic or otherwise, is not stated. In December, 1932, defendants owned a Ford coupé, 1922 model. On December 18, 1932, defendants sold the automobile to Young, and delivered possession to Young. On the evening of December 20, Young was driving the automobile on a street of the city of Fort Scott, and, while doing so, struck plaintiff and injured him.

The petition described the condition of the automobile as follows:

"The said plaintiff says that at the time the said defendants gave possession of said automobile to the said Merle Young, it was in a dangerous and defective condition and in such a condition that it was dangerous to persons and property to operate the same on the public highways; that the brakes on said automobile were worn thin and would not stop the automobile when applied, and the headlights would not burn, and if burning, were not visible three hundred (300) feet in the direction in which the automobile was proceeding, and the steering apparatus of said automobile was loose and worn and defective and in such a condition that the automobile could not be properly and effectively controlled, and the said automobile did not have a suitable horn, and a part of the footboard on the said automobile was gone, which affected the use of the brakes."

There was also a statement in the petition that the automobile was a nuisance.

The petition alleged defendants knew, or should have known the condition of the automobile and the danger attending its operation, and contained the following:

"The said plaintiff says that at the time he was struck by said automobile he was crossing said Third Street and said automobile struck said plaintiff for the reason that the said Merle Young was unable to properly, readily and effectively control or guide or stop said automobile and was unable to see the said plaintiff in time to readily and effectively control or guide or stop said automobile and avoid striking plaintiff on account of the dangerous and defective condition of said automobile, and said Merle Young was unable to warn the said plaintiff of the approach of said automobile by reason of the fact that there was no proper horn on said automobile, or other device, with which to give warning."

The petition alleged plaintiff was struck on account of the negligence of defendants and of Merle Young, and the negligence which constituted the cause of action against defendants was specified as follows:

"That the negligence of the said defendants consisted of selling or attempting to sell and in giving possession of said automobile to their said employee, and permitting their said employee to operate said automobile in its dangerous and defective condition on the public streets and highways of said city of Fort Scott, Kansas."

The brief of plaintiff clarifies the theory of the petition by disclaiming that liability is predicated on the ground an automobile is a dangerous instrumentality per se, or on the ground of ownership by defendants, or on the ground of respondeat superior.

There is no allegation in the petition that defendants concealed the defective condition of the automobile from Young, or failed to inform Young of the defects. There is no allegation that Young was either...