Fogo v. Steele
| Decision Date | 08 December 1956 |
| Docket Number | No. 40214,40214 |
| Citation | 304 P.2d 451,180 Kan. 326 |
| Parties | Johnnie Pauline FOGO, Administratrix of the Estate of Bradley Dennis Fogo, Deceased, Appellee, v. Harold STEELE and Florence Steele, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. An order overruling a motion to quash a service of summons is not an appealable order.
2. The petition examined in a wrongful death action where the owner of an automobile loaned it to another for the latter's purposes, when the lender knew or had reasonable cause to know, the borrower was and had been for a long time an incompetent, careless and reckless driver and the lender thereby permitted the borrower to use, drive, and operate the automobile as is more fully discussed in the opinion, and it is held, the trial court did not err in overruling the demurrer of the owner.
C. K. Sayler, Topeka, argued the cause, and L. E. Weltmer, Roderick E. Weltmer, and L. M. Weltmer, Mankato, and L. M. Ascough, and John A. Bausch, Topeka, were with him on the briefs for appellants.
Don W. Noah, Beloit, argued the cause, and Ralph H. Noah, Beloit, and George Teeple, Mankato, were with him on the briefs for appellee.
This is an appeal by defendants below from an order of the trial court overruling the demurrer of defendant Florence Steele to the petition of the plaintiff, and from an order overruling a motion of defendant Harold Steele to quash the service of summons.
Florence and Harold Steele, mother and son respectively, will hereafter be referred to by their first names.
The action is what is commonly called a wrongful death action and was brought by the mother as administratrix of the estate of her seventeen months' old deceased son for the benefit of herself and the father.
Florence was the owner of a 1948 Mercury four door sedan which at the time of the accident and resulting death of the child was being driven by Harold while on a mission of his own but with the oral permission, consent, authority and assent of Florence.
The petition need not be fully set out herein because the only portion challenged is that part upon which Florence's liability is predicated. It was alleged that at the time of the accident and for a long time prior thereto Harold was,
'* * * an incompetent, careless and reckless automobile driver, and that the said defendant, Florence Steel, knew, or had reasonable cause to know, that said defendant, Harold Steel, was an incompetent, careless and reckless automobile driver, and allowed and permitted the said defendant, Harold Steel, to use, drive and operate said automobile. * * *'
Florence filed a motion to make definite and certain by setting out facts and acts upon which the conclusions that Harold was an incompetent, careless and reckless automobile driver were based. The trial court overruled this motion and Florence then filed her demurrer which was also overruled. Harold filed a motion to quash the service of summons. This motion, too, was overruled.
The liabilities of Florence and Harold are not common so she is not interested in his motion and, on the other hand, he is not interested in her demurrer. Since the order overruling Harold's motion to quash was not a final order, it is not an appealable order and as a result, the appeal thereon must be...
To continue reading
Request your trial
-
Estate of Pemberton v. John's Sports Center
...cases are where the owner has permitted a known reckless or incompetent person to use his or her vehicle. See Fogo, Administratrix v. Steele, 180 Kan. 326, 328, 304 P.2d 451 (1956) (lending vehicle to known incompetent and reckless driver is basis for claim against lender); Richardson v. Er......
-
Sims' Estate, In re
...283 P.2d 442; City of McPherson v. Smrha, 179 Kan. 59, 293 P.2d 239; Boettcher v. Criscione, 180 Kan. 39, 299 P.2d 806; Fogo v. Steele, 180 Kan. 326, 304 P.2d 451; Wichita Chamber of Commerce v. State Corporation Commission, 179 Kan. 386, 295 P.2d 670; In re Estate of Hilliard, 170 Kan. 617......
-
Martell v. Driscoll
...party who was injured by an entrustee and seeks recovery for his or her damages from the entrustor. See, e.g., Fogo, Administratrix, v. Steele, 180 Kan. 326, 304 P.2d 451 (1956) (mother held responsible for negligence of her 20–year–old son by permitting him to drive her car knowing he was ......
-
Wheat v. Kinslow
...entrustment is a well recognized theory of liability in Kansas.2 See McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982); Fogo v. Steele, 180 Kan. 326, 304 P.2d 451 (1956). A negligent entrustment claim is based upon the owner of a motor vehicle entrusting, lending, permitting, furnishing or ......