Howard v. Zimmerman

• Decision Date: 09 January 1926
• Docket Number: 26,341
• Parties: JOSEPH M. HOWARD, Appellee, v. BUFORD ZIMMERMAN, Appellant
• Court: Kansas Supreme Court

242 P. 131

120 Kan. 77

JOSEPH M. HOWARD, Appellee, v. BUFORD ZIMMERMAN, Appellant

No. 26,341

Supreme Court of Kansas

January 9, 1926

Decided January, 1926.

Appeal from Rice district court; ELRICK C. COLE, judge pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MOTOR VEHICLES--Liability for Death--Joint Enterprise--Imputable Wantonness. The facts considered, and held, two boys who borrowed an automobile together and took two girls riding were engaged in a joint enterprise, in which each had equal control over operation of the vehicle; and the wantonness of the driver in colliding with a buggy and killing one of its occupants, was imputable to his associate, who at the time of the accident was riding in the rear seat of the automobile.

W. W. Stahl, of Lyons, C. M. Williams and D. C. Martindell, both of Hutchinson, for the appellant.

D. A. Banta, of Great Bend, and Ben Jones, of Lyons, for the appellee.

OPINION

BURCH, J.:

The action was one for damages resulting from the death of plaintiff's wife, who was killed through negligent operation of an automobile in the rear seat of which defendant was riding. Plaintiff recovered, and defendant appeals.

Defendant is a minor, and lives at Sterling. He and Orville Higbee were in the habit of taking automobile journeys together for pleasure. On a Sunday evening they agreed they would go to defendant's father and together ask him for one of his cars to take two girls automobile riding. They did so; permission to use the car was granted, and the four young persons went to Hutchinson. Defendant drove from Sterling to Nickerson. At Nickerson, Higbee took the driver's seat and drove to Hutchinson. On the way home, defendant drove from Hutchinson to Nickerson, and Higbee drove from Nickerson to the place where the accident occurred. When Higbee was driving, defendant sat in the rear seat.

The road from Nickerson to Sterling is paved. Plaintiff lived on a farm west of Nickerson. His family consisted of his wife and a boy nine years old. On the evening in question they attended church in Nickerson, going in a buggy drawn by a single horse. Two miles west of Nickerson a north and south highway crosses the paved road. On the way home, and near the intersection, plaintiff noted the lights of an automobile approaching behind him. His horse and the left wheels of the buggy were on the pavement, and the right wheels were off the pavement on the north side. When plaintiff saw the lights, he pulled the horse off the pavement and as far to the right as he could without getting into the ditch. The approaching car was the Zimmerman car. It struck the buggy, completely demolished it, killed plaintiff's wife outright, and injured the little boy. Ruther Meadors, traveling in his automobile eastward on the south side of the road, met plaintiff at a point near the east edge of the highway intersection, and then met the Zimmerman car. Meadors was about twenty feet east of the intersection when he heard the collision. He said the Zimmerman car was traveling at a speed of from forty-five to fifty miles per hour. After striking the buggy, the car crossed the road at an angle of about forty-five degrees, struck the south bank of the ditch at the south side of the road, righted itself, ran westward up the ditch, and turned north toward the pavement at a point 300 feet west of the place where the collision occurred.

The court instructed the jury that, in order to render defendant liable for Higbee's negligent operation of the car, it was necessary that the two should have been engaged in a common purpose or enterprise and should have had joint control of the automobile at the time of the accident; and if the jury believed the two were out for a common purpose and had joint control and equal control of the automobile at the time of the accident, it would make...