Duran v. Mission Mortuary

• Decision Date: 06 June 1953
• Docket Number: No. 38802,38802
• Citation: 174 Kan. 565,258 P.2d 241
• Parties: DURAN v. MISSION MORTUARY et al.
• Court: Kansas Supreme Court

Page 241

258 P.2d 241

174 Kan. 565

DURAN v. MISSION MORTUARY et al.

No. 38802.

Supreme Court of Kansas.

June 6, 1953.

Syllabus by the Court.

1. Equally credible witnesses will often speak of a past event in a different manner,--one with positiveness and assurance, and the other with doubt and hesitation; yet it does not follow that a jury must credit the former in preference to the latter, or that, if they fail so to do, a court is justified in setting aside the verdict as against the evidence.

2. A court or jury is not required to believe the testimony of a witness or witnesses merely because there is no direct evidence to contradict the same.

3. Operator of authorized emergency vehicle who is given special immunity from statutory speed regulations when responding to an emergency call if sounding a siren, waives special privileges unless he gives audible signal or warning, as contemplated by G.S.1949, 8-536.

4. Concurrent negligent acts of two or more parties render them liable as joint tort-feasors.

5. Where a third person sustains indivisible injuries in a motor vehicle collision as a result of negligence on the part of the drivers of two other motor vehicles, which is so related and interwoven in point of time and place that it appears the injuries would not have been received by the third person except for the successive and combined negligence of the others, those whose negligent acts so united in producing the injuries are jointly and severally liable to the injured party and may be sued separately or jointly at his election, following Reed v. Mai, 171 Kan. 169, 231 P.2d 227.

6. Sheriffs are responsible for acts of their deputies performed or committed in discharging their official duties.

7. A deputy sheriff, while operating a patrol car on the public highways in transporting himself from a place of duty to another place of duty in response to a radio message from sheriff's office directing him to an emergency accident, during his working hours, is acting officially, and the sheriff is liable on his official bond for the negligent acts of his deputy, resulting in a collision with another vehicle causing injury to a third person.

8. Where, in the discharge of official duty, a deputy sheriff fails to take that precaution or exercise that care which due regard for others requires, resulting in injury, his negligent acts constitute misconduct as the term is used in G.S.1949, 19-805.

9. Liability of sheriff for the official acts of his deputy is not based upon the doctrine of respondeat superior, but on the fact that by statute the deputy is his representative for whose acts he is liable as if they had been done by himself.

10. Record examined in an action for wrongful death and personal injuries and held, the verdicts were not excessive.

J. B. Patterson, of Wichita, argued the cause, and A. W. Hershberger, Richard Jones, Wm. P. Thompson, H. E. Jones and Jerome E. Jones, all of Wichita, were with him on the briefs for appellant and cross-appellant Mission Mortuary, and for appellant Lorenzo F. Butler.

Wayne Coulson, of Wichita, argued the cause, and Howard T. Fleeson, Homer V. Gooing, Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Gerrit H. Wormhoudt and Theodore C. Geisert, all of Wichita, were with him on the briefs for appellant Robert S. Gray, and for appellant and cross-appellant Richard L. Phillips.

Bill V. Hampton, of Pratt, and Tudor W. Hampton, of Great Bend, argued the cause, and Bill Murray, of Pratt, and S. R. Blackburn, Jerry M. Ward and H. Lee Turner, all of Great Bend, were with them on the briefs for appellee.

WERTZ, Justice.

This was an action for damages for personal injuries sustained by plaintiff and for the wrongful death of her husband, Pete Duran, resulting from a collision between two motor vehicles.

Plaintiff Josephine Duran and her invalid husband were being transported from Pratt to the Veterans Administration Hospital at Wichita, in an ambulance owned by Mission Mortuary, a corporation, and driven by its employee Lorenzo F. Butler. A collision occurred between the ambulance and a sheriff's patrol car being driven by Richard L. Phillips, a deputy sheriff of Sedgwick county.

Plaintiff brought the action against Mission Mortuary, Lorenzo F. Butler, and Robert S. Gray, sheriff of Sedgwick county and Richard L. Phillips, his deputy. The jury returned a verdict for plaintiff and against all defendants, and assessed her damages for wrongful death at $15,000, and for her personal injuries, $8,500.

Defendant Phillips cross-petitioned against defendants Mission Mortuary and Butler for his personal injuries. The jury returned a verdict against Phillips and in favor of Mission Mortuary and Butler. Defendant Mission Mortuary cross-petitioned against Phillips and Gray to recover damages sustained to its ambulance. The jury returned a verdict against Mission Mortuary and in favor of Phillips and Gray.

Defendants Mission Mortuary and Butler have appealed from the judgment in favor of the plaintiff, and defendant Mission Mortuary has appealed from the judgment against it on its cross-petition. Phillips and Gray have appealed from the judgment in favor of the plaintiff, and defendant Phillips has appealed from the judgment against him on his cross-petition.

For convenience, the parties will be hereinafter referred to as follows: Appellee Josephine Duran as plaintiff; appellant and cross-appellant Mission Mortuary as defendant mortuary; appellant Lorenzo F. Butler as defendant Butler; appellant Robert S. Gray as defendant Gray or sheriff, and appellant and cross-appellant Richard L. Phillips as defendant Phillips or deputy sheriff.

The pertinent facts may be summarized as follows: On October 31, 1949, Pete Duran employed the defendant mortuary to transport him and his wife by ambulance to the Veterans hospital at Wichita. The ambulance was driven by its agent, defendant Butler. Plaintiff was riding in the ambulance as attendant at the request of the mortuary. Their destination was the Veterans hospital where Pete Duran was to be treated surgically. The hospital is located on the east side of Wichita. The city limits at that time were immediately east of the hospital grounds. These grounds are situated on the north side of Kellogg, an east and west thoroughfare, which is a wide concrete highway providing four lanes for moving traffic, two eastbound and two westbound, with an additional area for parallel parking on either side. There are two entrances to the hospital grounds, one at its west boundary and one near its east boundary. When defendant mortuary's ambulance approached the west gate of the hospital grounds, it was moving slowly. Pete Duran was on a cot in the rear portion of the ambulance. Plaintiff was sitting in a chair at his side. John Duran, Pete's brother, was sitting on the right of the front seat of the ambulance beside the driver. The ambulance siren was silent but the red lights on the top front of the ambulance were illuminated. Traffic was heavy. Butler determined to go on to the east gate. On the night in question, defendant Phillips, deputy sheriff, was assigned to road patrol. About 6:20 p. m. he was driving a sheriff's patrol car when he received a message informing him of a fatality and bad injury accident east of the city limits on Kellogg. He had general instructions to get to this accident in a hurry. The dispatcher from the sheriff's office informed him by radio of the accident and that a Gordon ambulance had also been dispatched to the place of the accident. Phillips proceeded east on Kellogg. His sheriff's patrol car was equipped with two 4 1/2 inch flashing red lights over the windshield, one on each corner, and a battery-operated siren with a lock switch. When he first received the message, he turned on the red lights and the siren. As he neared the intersection of Oliver and Kellogg streets, about 1/2 mile west of the hospital, he turned off his siren to listen for the Gordon ambulance which he was expecting. The Gordon ambulance came south on Oliver and turned east on Kellogg. Phillips testified he then turned on his siren and went through the intersection on a red light. The Gordon ambulance was about 1 1/2 blocks in front of him when he got through the intersection. About halfway between the hospital gates, defendant Butler, driver of the mortuary ambulance, heard the siren of the Gordon ambulance to the rear. He pulled over to the right-hand side of the street, permitting the Gordon ambulance to pass on his left and to continue on east. After the Gordon ambulance had passed, defendant Butler looked in his rear view mirror on the left side of defendant's ambulance and saw nothing unusual. There were lights of motor cars a half to three-fourths block behind him. Butler undertook to make a left-hand turn back into the lane nearest the center and then north across the street to go into the east gate of the hospital grounds. When Butler had almost completed the turn and his ambulance was about in the center of Kellogg street, he heard brakes screaming behind him. He looked out the left window and saw the red lights of the approaching car. At that time his ambulance was in high gear. He tried to accelerate it to get out of the way, but did not succeed and the front end of the sheriff's patrol car collided with the left rear end of the ambulance. Pete Duran and the plaintiff were both thrown out the rear of the ambulance onto the pavement, Pete Duran sustaining serious injuries resulting in his death two days later, and plaintiff sustaining serious personal injuries by reason thereof.

Plaintiff's petition alleged that the defendants mortuary and Butler were guilty of negligence in making a left-hand turn from a right-hand lane across Kellogg for the purpose of entering a private driveway without giving any signal or warning of the driver's intention to so do, and in making such left-hand turn in such close proximity with other...