Hughes v. Jones

• Decision Date: 07 November 1970
• Docket Number: No. 45816,45816
• Citation: 206 Kan. 82,476 P.2d 588
• Parties: Clete M. HUGHES, Appellee, v. Wayne W. JONES, d/b/a AAA Home Trailers, Appellant, and Willard D. Hixon, Defendant.
• Court: Kansas Supreme Court

Page 588

476 P.2d 588

206 Kan. 82

Clete M. HUGHES, Appellee, v. Wayne W. JONES, d/b/a AAA Home Trailers, Appellant and Willard D. Hixon, Defendant.

No. 45816.

Supreme Court of Kansas.

Nov. 7, 1970.

Syllabus by the Court

1. In a damage action for personal injuries received in an automobile accident wherein the plaintiff sued a used car and mobile home dealer and Hixon, the driver of an automobile involved, the issue of agency was determined in a separate trial and resulted in a verdict finding Hixon to be the agent of the dealer at the time the collision occurred. On appeal the record is examined and it is held: As a matter of law there was no substantial evidence to support the finding of the jury that Hixon was acting as the agent of the dealer when the collision occurred, on facts more particularly stated in the opinion.

2. The fact that a dealer's license plate is on an automobile driven by another at the time a collision occurs is not a controlling factor on the issue of agency between the dealer and the driver.

Byron J. Beck, of Morrison, Hecker, Cozad, Morrison & Curtis, kansas City, Mo., argued the cause, and David R. Culp, Kansas City, Mo., and Robert D. Benham, of McAnany, Van Cleave & Phillips, Kansas City, were with him on the brief for appellant.

Barton Brown, of Wallace & Saunders, Overland Park, argued the cause and was on the brief for appellee.

SCHROEDER, Justice:

This is a damage action for personal injuries received in an automobile accident which occurred on July 28, 1963, in Wyandotte County, Kansas, wherein the plaintiff sued the defendants, wayne W. Jones d/b/a AAA Home Trailers and Willard D. Hixon, the driver of an automobile involved. In the lower court Hixon was never served with summons and made a party to the lawsuit. A separate trial to a jury on the issue of agency resulted in a jury verdict on February 7, 1967, finding Hixon to be the agent of Jones at the time the collision occurred. Thereafter a second trial to a jury on the remaining issues resulted in a verdict against the defendant Jones in the amount of $8,000 on November 6, 1968. Jones has duly perfected an appeal to this court.

The determinative question on appeal is whether the record discloses sufficient evidence to support the jury's finding that Hixon was the agent of Jones the time the collision in question occurred.

The accident occurred at 12th and State Avenue in Kansas City, Kansas, between a 1954 Chevrolet automobile driven by Willard D. Hixon and a 1962 Ford Falcon driven by Lloyd Hughes. Clete M. Hughes (plaintiff-appellee) was a passenger in the Falcon automobile and the wife of Lloyd Hughes. The accident resulted from defective brakes on the 1954 Chevrolet, causing Hixon in the emergency created to swerve left across traffic proceeding in the opposite lane in an attempt to get off the street. A more detailed statement of the facts concerning the accident is not material to this appeal, except to note negligence on the part of Hixon was established by the evidence.

The facts giving rise to this case are rather involved. Wayne W. Jones (defendant-appellant) sells mobile homes at 4848 State Avenue, Kansas City, Kansas. In 1963 Jones was a licensed used car and mobile home dealer. At that time one license covered both occupations. In July, 1963, Roy Combs, a salesman for Jones, negotiated with Richard Patchen for the sale of a mobile home. Jones did not participate in the actual negotiations and did not talk or meet with Patchen until, after the accident. As a salesman Combs was authorized to negotiate for the sale of a mobile home and enter into a written agreement with the purchaser.

The negotiations between Patchen and Combs resulted in an agreement whereby Patchen was allowed $300 for two automobiles, a 1953 Pontiac and a 1954 Chevrolet, as a down payment on a mobile home. Thereupon the parties entered into a written agreement dated July 27, 1963, entitled 'Customer's Order for Mobilehome.' The document describes a 1954 Magnolia mobile home thirty-eight feet in lenght and eight feet wide sold to Richard R. Patchen for the sum of $1,475. The initial down payment was shown as $300, and the unpaid balance together with the sales tax and insurance was to be paid in monthly installments over a period of thirty-six months in the sum of $46.24 each, beginning September 10, 1963. Specific terms written into the contract read as follows:

'1. Dealer agrees to deliver and set up trailer.

'2. Purchaser agrees to deliver 1954 Chevy and 1953 Pontiac to dealer.

'3. Dealer warrants equipment in trailer to work when delivered otherwise as is.' (Emphasis added.)

At the bottom of the customer's order Patchen and his wife signed the agreement, and Roy Combs signed for AAA Mobile Home Co., Dealer. Under the signature of Combs is typed the words, 'Approved Subject to acceptance by bank or finance company.'

On the reverse side of this document it is headed, 'Additional Terms and Conditions.' At the top of this page over the heading it states, 'This agreement is for the protection of both parties. No changes permitted!' (Emphasis added.) The material portion of the document concerning the additional terms then reads:

'It is further undrstood and agreed:

'The order on the reverse side hereof is subject to the following terms and conditions all of which have been mutually agreed upon:

'1. The purchaser agrees to deliver the original bill of sale or the title to any used car, mobilehome, trailer or vehicle traded in as partial payment, along with the delivery of the said property to dealer's premises, and does warrant that such car, mobilehome, trailer or vehicle to be his property, free and clear of all liens and encumbrances except as otherwise noted on the face of this instrument.' (Emphasis added.)

At the bottom of this page the contract reads:

'This agreement contains the entire understanding between us and no other representation or inducement, verbal or written, has been made which is not set forth herein.'

After the foregoing contract was signed by the parties, Patchen testified: 'Combs said we had a deal, and it was my understanding it was a firm contract.' Patchen then testified:

'Q. What arrangements were made at that time for you to get the cars over there to Triple A?

'A. As I started to leave, why, this salesman asked me if I could find somebody to bring them over, that they was busy and couldn't get away to come over after them.

'Q. And what did you say to that?

'A. I told him no, that I didn't have no license tags and I couldn't drive them without tags.

'Q. What did he offer to do then?

'A. Then he said-he went and got a dealer's tag and said to go ahead and use it, to have somebody bring it over.

'Q. Both cars, the Chevy and the Pontiac?

'A. Yes, just one dealer's tag but, you know, change it.

'Q. Did he want you to follow the man over, is that it, and take him home?

'A. Yes. See, I had to get somebody to drive them over and me follow them so they would have a way back.

'Q. But do I understand it, you were doing this at the request of Mr. Jones of AAA?

'A. Well, of AAA. He was there when the salesman give me the tags.

'Q. Mr. Jones saw Mr. Combs, the salesman, give you the tags?

'A. Why I don't see how he could have kept from it.

'Q. And he overheard the conversation that you were going to arrange for someone to bring the cars over to them?

'A. Yes, he was-he was sitting there. I couldn't definitely say he heard him, but he was there.'

According to Patchen, he could not find anyone to drive the two automobiles to Jones' place of business on Saturday, July 27; but on Sunday, July 28, Patchen asked Willard D. Hixon to drive the cars over as a 'favor.' According to Patchen, Hixon never asked to be paid and Patchen did not promise to pay him. Hixon, on the other hand, testified by deposition that Patchen was to pay him for taking the cars over.

Before starting on the trip Patchen and Hixon checked the cars over and did not find anything wrong. They checked the gas, oil and added some brake fluid, since the master cylinder on the 1954 Chervrolet was a little low. Hixon then delivered the 1953 Pontiac from Patchen's place to Jones' used car lot and was followd by Patchen who brought him back. The dealer's tag of Jones was then taken from the Pontiac and placed upon the 1954 Chevrolet automobile and Hixon started driving it over to Jones' place of business with Patchen following some distance behind. The accident occurred enroute but was not witnessed by Patchen. Because of the accident the purchase of the mobile home fell through, and Patchen never saw the 1954 Chevrolet after it was towed off. Jones had never seen the 1954 Chevrolet.

According to Patchen, Jones did not know Hixon was going to drive the two cars over to his place of business, and no arrangement had been made for Jones to pay Patchen for delivering these two automobiles.

Hixon in his deposition testified he did not know Roy Combs or the defendant, Wayne W. Jones, and he had never worked for either or had naything to do with AAA Home Trailers. Hixon never talked to Jones following the accident, and said he would not know Jones if he saw him.

Jones admitted in his testimony on crossexamination that his dealer's tag was on the 1954 Chevrolet automobile involved in the accident; and that Combs had authority to sign the written document entered into between Patchen and AAA Home Trailers. He further testified:

'* * * Subject to the approval of Patchen's credit application, the transaction was to be completed. I admit that three days following the accident I made the statement 'We loaned him one of our dealer tags so that he could bring the Chevrolet to us.' I had no knowledge prior to the accident that the dealer tags had been loaned. * * *'

On appeal the appellee asserts certain deposition testimony given by Jones which she contends was introduced on her behalf as an admission by Jones. In the deposition testimony of Jones, ...