Halverson v. Blosser

• Decision Date: 10 November 1917
• Docket Number: 20,941
• Parties: H. HALVERSON, Appellant, v. QUINCY BLOSSER and CHARLES BLOSSER, Appellees
• Court: Kansas Supreme Court

168 P. 863

101 Kan. 683

H. HALVERSON, Appellant, v. QUINCY BLOSSER and CHARLES BLOSSER, Appellees

No. 20,941

Supreme Court of Kansas

November 10, 1917

Decided July, 1917.

Appeal from Republic district court; JOHN C. HOGIN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILE--Injuries While Operated by Other than Owner--Owner's Liability. An owner of an automobile is not liable for injuries caused in its operation by others unless such others were servants or agents of the owner and acting in furtherance of his business.

2. SAME. Nor is he liable for injuries negligently caused by persons to whom he loaned the automobile to be used for their own purposes, where it was not being used at the time of the injury under his direction or control or in any way connected with his business.

3. SAME--Auto Operated by Owner's Minor Son--Owner's Liability. The mere fact that the son of the owner accepted an invitation from the borrowers of an automobile to accompany them on a trip, and did so on his own initiative, operated the machine a part of the time, and was operating it when the injury was caused, does not render the owner liable for injuries negligently caused on the trip.

4. SAME--Negligence--Injuries--Proof of Ownership Alone Not a Prima Facie Case Against Owner. A prima facie case was not made out by plaintiff when he showed that the defendant was the owner of the automobile which caused the injury, where the evidence offered by him in the same connection showed that at the time of the injury the automobile was being used in the business of the borrowers and not that of the owner, and that those operating the machine were not in any way under the direction or control of the owner.

5. SAME. To recover against the owner it devolved upon the plaintiff to show that the persons in charge of the machine were in some sense the servants or agents of the owner and that they were engaged in the owner's business.

6. SAME--Lending Car with Defective Muffler--Owner's Liability. Under the circumstances shown, the owner is not liable for injuries inflicted by the persons in charge of the automobile because at the time he loaned the machine it had a broken muffler and was noisy in operation.

7. SAME--New Trial--When Duty of Court to Grant. If a trial court can not approve the verdict of a jury it is its duty to set it aside, and an order granting a new trial herein without indicating the grounds of the ruling, where two of six grounds of the motion for a new trial were that the verdict was contrary to the evidence and the result of passion and prejudice of the jury, should not be reversed on this appeal.

W. T. Roche, and F. L. Williams, both of Clay Center, for the appellant.

Nelson J. Ward, of Belleville, and R. W. Turner, of Mankato, for the appellees.

OPINION

JOHNSTON, C. J.:

H. Halverson brought this action against Quincy Blosser and Charles Blosser a minor, to recover damages alleged to have resulted from the negligent driving of an automobile owned by Quincy Blosser. The court sustained a demurrer to plaintiff's evidence as to the defendant Quincy Blosser, and later the jury returned a verdict in favor of the plaintiff against the defendant Charles Blosser, but the court set aside the verdict and granted Charles Blosser a new trial. Of these rulings the plaintiff complains.

Quincy Blosser is the owner of the automobile in question, which he kept for the general use and benefit of himself and the members of his family. The other defendant is his son, who frequently drove the machine. In response to a request from Homer Christensen and Myron Christensen, the owner of the automobile loaned them the use of the machine to make a trip to Manhattan to have an analysis made of the head of a cat that had bitten their father, to determine whether it had hydrophobia. At the invitation of the Christensens, Charles Blosser decided to accompany them on the trip. Quincy Blosser had told the Christensens that his son might go if he so desired, but he was not aware that his son did go until afterward, and the son decided upon his own initiative to make the trip. When the automobile was loaned it had a broken muffler, which rendered its operation very noisy, and the defendants knew of this fact. On the trip the Christensens and Charles Blosser took turns in driving the automobile. On the return trip, while Charles Blosser was driving, they met the plaintiff, his wife and daughter, who were traveling in a surrey drawn by a team of horses. The plaintiff's team became frightened and unmanageable, with the result that plaintiff's wife was injured by the overturning and breaking of the surrey.

It is contended by plaintiff that error was committed in sustaining the demurrer to plaintiff's evidence as against Quincy Blosser. It is insisted that as Quincy Blosser was the owner of the automobile, and it was being driven by his minor son when the accident occurred, a prima facie case was made and that it should have been submitted to the jury. Liability can not result from ownership of an automobile, nor from the relationship of father and son, nor yet from the fact that the son, who chanced to be driving it at the time of the injury, was a minor. Liability of Blosser arises, if at all, on the relation of master and servant or principal and agent, and depends upon whether the son was engaged in the father's business at the time of the accident, and was acting within the scope of his employment. If the son was acting under the direction and control of the father in operating the car which caused the injury, and in furtherance of his business, he may be liable under the general principles governing the relation of master and servant, or principal and agent. If, however, the machine was being used in some way not connected with the father's business, and if the son was acting for himself, or for another, and not under the direction and control of the father, the latter can not be held liable for negligence in its operation.

The evidence shows beyond dispute that the automobile had been borrowed by the Christensens for their own purposes. Defendant did not loan them the son with the automobile, and it appears that they had previously driven the car and knew how to operate it. When the father, who was out in the field and not in the presence of the son, was asked if he had any objections to Charles going with them on the trip, he said Charles was tired and probably would not desire to go, but it was a question for him to decide. It appears, therefore, that Blosser, the owner, had no connection with the transaction out of which the injury arose; that he had no direction or control of the operation of the machine upon the trip to Manhattan; and that his son Charles, who had happened to take the ride with the Christensens, did so on his own initiative, and not as the servant or agent of his father.

Plaintiff argues that a prima facie case of liability against the father was established when his ownership of the automobile which caused the injury was shown, and that, therefore, the issue should have been submitted to the jury. His contention is that upon proof of ownership, a presumption at once arose that his son, operating the machine at the time of the injury, was acting as the servant or agent of his father. Some of the authorities cited by plaintiff are to the effect that when a person is employed for the special purpose of operating an automobile for the owner, the presumption arises that he is operating it in the owner's business or service. (Hays v. Hogan, 180 Mo.App. 237, 165 S.W. 1125; Purdy v. Sherman, 74 Wash. 309, 133 P. 440; Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020; Coal Company v. Rivoux, 88 Ohio St. 18, 102 N.E. 302.)

The Washington cases appear to support the plaintiff's contention, but Coal Company v. Rivoux, supra, can not be regarded as a supporting authority. It holds substantially that proof of ownership of an automobile by a defendant, operated by his employee, does not make a prima facie case of liability of the defendant for the negligence of the employee, unless it was also shown that the employee was operating the car under the authority of the owner. This holding appears to accord with most of the authorities and to be in line with the general rule in negligence cases, that in order to make out a case against an owner of an automobile it devolves upon the plaintiff, not only to show ownership, but also that the servant or chauffeur in charge of the automobile at the time of the injury was engaged in the business of the owner. (Note, 46 L. R. A., n. s., 1091, where many of the authorities are collected. See, also, Mirick v. Suchy, 74 Kan. 715, 87 P. 1141; Reynolds v. Denholm, 213 Mass. 576, 100 N.E. 1006; Hartnett v. Gryzmish, 218 Mass. 258, 105 N.E. 988; Lotz, Appellant, v. Hanlon, 217 Pa. 339, 66 A. 525; McFarlane v. Winters, 47 Utah 598, 155 P. 437; Berry on Automobiles, 2d ed., § 615; Babbitt on Motor Vehicles, § 559.)

Here, however, there is no room for the presumption invoked. In the absence of evidence a fact may be presumed from the existence of other facts and circumstances, but where there is direct and positive proof of the fact there is no place for the presumption. In Erhart v. Dietrich, 118 Mo. 418, 24 S.W. 188, it was said that--

"Presumptions serve a most useful and indispensable part in the correct decision of many questions, but they are out of place ...