Le Clair v. Hubert
| Decision Date | 07 December 1940 |
| Docket Number | 34899. |
| Parties | LE CLAIR v. HUBERT. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Petition which alleged that plaintiff accompanied defendant truck driver, who was a licensed contract carrier of goods, to assist truck driver in loading heavy tractor wheels which truck driver was hired to transport to place of business of plaintiff's employer, and that plaintiff was injured because of negligence of truck driver in operation of the truck, was sufficient, as against demurrer. Gen.St.1935 8-122b.
The "fellow servant" doctrine in personal injury actions does not enter into cases in which the master is not concerned.
Where plaintiff accompanied defendant, a licensed contract carrier of goods, on a journey to assist the latter in loading heavy tractor wheels which defendant was hired to transport to the place of business of plaintiff's employer, and plaintiff was injured because of the negligence of defendant in the operation of the truck in which plaintiff was riding plaintiff's third amended petition, which alleged the foregoing facts in the usual terms of good pleading was sufficient to withstand defendant's demurrer thereto.
Appeal from District Court, Cloud County; Tom Kennett, Judge.
Action by John Le Clair against Leo Hubert, for injuries sustained by plaintiff while an occupant of defendant's truck when defendant's truck collided with an automobile at an intersection. From a judgment overruling defendant's demurrer to plaintiff's third amended petition, the defendant appeals.
The "fellow servant" doctrine in personal injury actions does not enter into cases in which the master is not concerned.
Charles A. Walsh, of Concordia, for appellant.
Lee R Stanford and Marvin O. Brummett, both of Concordia, for appellee.
This is an appeal from a judgment overruling defendant's demurrer to plaintiff's third amended petition in which he sought to state a cause of damages for negligence in the operation of a truck in the cab of which plaintiff was riding beside the defendant driver when the truck collided with an automobile at a cross roads' intersection.
The pertinent facts were these: The defendant Leo Hubert, of Concordia, is a contract carrier and operates a half-ton truck under a permit issued by the state corporation commission. Some time prior to July 15, 1939, Montgomery Ward & Company which operates a mercantile establishment in Concordia had made a deal with a farmer residing near Glasco to affix rubber tires to his tractor wheels; and the mercantile company hired Hubert to bring the tractor wheels to Concordia for that purpose. The company sent the plaintiff Le Clair, its own employee, along with Hubert to assist him in loading the tractor wheels.
Accordingly on July 15, 1939, plaintiff and defendant went to a farm near Glasco and loaded the four 600-pound tractor wheels into defendant's truck and started eastward towards Concordia. At a cross roads' intersection the truck collided with an automobile which came from the south driven by one Sawhill. The occupants of both vehicles were injured.
Plaintiff brought this action for damages against Hubert and his insurance carrier. He also joined Sawhill as defendant, but our only present concern is whether plaintiff stated a cause of action for negligence against Hubert, his fellow occupant of the track.
Plaintiff's several petitions were subjected to various motions which were disposed of as shown by journal entries in the record in one of which it is recited that: "The plaintiff admitted in open court that he never paid Leo Hubert any fare, money, goods, or other thing of value as a passenger or occupant of said truck at the time and place of the alleged accident."
In plaintiff's third amended petition the pertinent facts were set out at length, and it was alleged that both vehicles were being driven at excessive speed at the time of the collision, that at the approaches to the intersection their range of vision was shortened by a dense hedge and growth of weeds, that neither driver reduced his speed, that neither sounded a warning, nor kept a lookout, and that they failed to apply their brakes, and failed to exercise ordinary care under the circumstances.
Plaintiff also alleged that pursuant to the request of his employer, Montgomery Ward & Company, "said plaintiff did accompany said defendant, Leo Hubert, to said farm near Glasco, Kansas, and did aid, assist and help him in loading said large iron tractor wheels in said truck; and that by reason thereof, said defendant, Leo Hubert, received help, aid and assistance in loading and transporting said tractor wheels."
Defendant lodged a motion to make plaintiff's third amended petition definite and certain in various particulars. This motion was overruled, and he then filed a demurrer which was likewise overruled.
Hence this appeal.
Counsel for both parties seem to agree that the correctness of the trial court's judgment depends on the status of plaintiff while riding in defendant's truck at the time of the collision and his consequent...
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