Hurla v. Capper Publications, Inc.

• Decision Date: 04 March 1939
• Docket Number: 34079.
• Citation: 149 Kan. 369,87 P.2d 552
• Parties: HURLA v. CAPPER PUBLICATIONS, Inc., et al.
• Court: Kansas Supreme Court

87 P.2d 552

149 Kan. 369

HURLA v. CAPPER PUBLICATIONS, Inc., et al.

No. 34079.

Supreme Court of Kansas

March 4, 1939

Syllabus by the Court.

In testing sufficiency of plaintiff's evidence as against demurrer, court will consider plaintiff's evidence as true, will disregard that unfavorable to plaintiff, and will not weigh any part that is contradictory or any difference between plaintiff's direct and cross-examinations, and if when so considered there is any evidence sustaining plaintiff's case, demurrer should be overruled.

In action for injuries sustained by occupant of automobile in collision, where occupant's evidence showed that automobile approaching county highway on township road entered intersection at high rate of speed after automobile in which occupant was riding was already in intersection whether driver and owner of approaching automobile were negligent was for jury. Gen.St.Supp. 1937, 8-550 (a), 8-552 (a).

A "master" is a "principal" who employs another to perform service in his affairs and who controls or has right to control physical conduct of other in performance of the service.

A "servant" is one employed to perform service in master's affairs, whose physical conduct in performance of the service is controlled or is subject to right to control by the master.

An "independent contractor" is one who contracts to do something for another but who is not controlled by the other or subject to other's right to control with respect to his physical conduct in performance of the undertaking.

A "principal" who employs another to achieve a result, but who does not control or have right to control details of other's physical movements, is not responsible for incidental negligence while such other is conducting the authorized transaction.

A fact is not proved by circumstances which are merely consistent with its existence.

Proof of negligence cannot rest on mere conjecture but must be established by competent evidence.

One engaged in soliciting and collecting subscriptions and delivering papers to subscribers was "independent contractor," for whose negligence with respect to operation of automobile publisher was not liable in absence of evidence that publisher controlled or had right to control physical conduct of carrier in performance of his duties rather than "servant" of publisher as "master."

1. In testing the sufficiency of evidence as against a demurrer court will consider plaintiff's evidence as true, disregard that unfavorable to plaintiff, and not weigh any part that is contradictory or any differences between plaintiff's direct and cross examinations, and, if so considered there is any evidence which sustains the plaintiff's case, the demurrer should be overruled.

2. A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.

3. A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.

4. An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking.

5. A principal employing another to achieve a result but not controlling nor having the right to control the details of his physical movements is not responsible for incidental negligence while such person is conducting the authorized transaction. It is only when to the relationship of principal and agent there is added the right to control physical details as to the manner of performance which is characteristic of the relationship of master and servant, that the person in whose service the act is done becomes subject to liability for the physical conduct of such agent.

6. Proof of negligence cannot rest on mere conjecture but must be established by competent evidence.

7. A fact is not proved by circumstances which are merely consistent with its existence.

Appeal from District Court, Jackson County; Lloyds Morris, Judge.

Action by Michael Hurla, by his next friend, Louis Hurla, against Capper Publications, Incorporated, and others, to recover damages for injuries. From a judgment for defendants, plaintiff appeals.

Affirmed in part and reversed in part.

E. R. Sloan, W. Glenn Hamilton, Floyd A. Sloan, and Eldon R. Sloan, all of Topeka, Paul H. Ditzen, of Kansas City, and Albert M. Cole, of Holton, for appellant.

T. M. Lillard, O. B. Eidson, Philip H. Lewis, Hugh T. Fisher, and Irwin Snattinger, all of Topeka, and M. A. Bender and H. Dean Shrader, both of Holton, for appellees.

ALLEN Justice.

This action was for damages growing out of an automobile collision. The several defendants submitted demurrers to the evidence on the ground plaintiff had failed to prove a cause of action. The demurrers were sustained and plaintiff appeals.

Plaintiff in his petition alleged that the defendant Arthur Capper and Capper Publications, Incorporated, operated several routes of the Topeka Daily Capital in the neighborhood of Delia, Kansas; that the defendant John Lane is the agent, servant and employee of the defendants Arthur Capper and the Capper Publications; that he collected subscriptions and delivered the Sunday edition of that paper under the control, supervision and direction of such defendants; that on September 26, 1937, John Lane had the paper delivered on the Delia routes by Orland Lane, Dewayne Zirkle and Leo Hanrahan; that these parties were the acting agents, servants and employees of defendants Arthur Capper and Capper Publications. It was further alleged that on September 26, 1937, the Hurla family in a Chevrolet coach were driving east on a county highway; Francis Hurla was driving the car; the plaintiff was riding in the front seat beside the driver; Mr. and Mrs. Hurla and their daughter were riding in the back seat. At a point two miles east of Delia the county highway is intersected by a township road running north and south. At the intersection the Hurla car collided with a Ford V-8 car traveling north on the township road and driven by the defendant Zirkle. The Ford car was owned by the defendant John Lane. In the car with Zirkle at the time of the accident were Orland Lane and Leo Hanrahan.

As a result of the collision the plaintiff Michael Hurla suffered severe injuries for which he asks damages.

The negligence charged is that Zirkle drove the Ford automobile on the township road at a high and dangerous rate of speed --at approximately 60 miles per hour-- with a total disregard of the rights of life, limb and property of other persons using the highways; that Zirkle drove into the intersection after the car in which plaintiff was riding had entered the highway and had traveled more than half the distance across the intersection; that Zirkle drove into the intersection without sounding his horn or giving any warning of his intention so to do; that he failed to stop his car at the county highway, and failed to maintain a lookout for cars approaching on the county highway; that the brakes on the Ford car were in bad condition; that Zirkle was not a licensed driver and was driving the car in violation of the statutes.

It was charged that the defendant John Lane owned the Ford car and knew the brakes were defective; that he knew Zirkle was an incompetent, careless and reckless driver; that he carelessly and negligently permitted Zirkle, Orland Lane and Leo Hanrahan to use such defective car in the delivery of the Sunday issue of the Topeka Daily Capital for the defendants Arthur Capper and Capper Publications, Incorporated.

The first question presented is whether the court erred in sustaining the demurrers submitted by the defendants John Lane and Dewayne Zirkle to plaintiff's evidence.

The answer of the defendant John Lane specifically denied that he was agent, servant, or employee of Arthur Capper, or Capper Publications, Incorporated, or that his delivering of the newspapers was under the control or direction of those parties; denied that defendants Dewayne Zirkle, Orland Lane or Leo Hanrahan were his servants or employees as alleged by plaintiff, and alleged that if Dewayne Zirkle was driving his car, it was without his knowledge or consent; admitted that a collision occurred between the defendant's car and a car driven by Francis Hurla at the time and location alleged in the petition, but denied that the driver of the defendant's car or any person riding therein was guilty of any negligence that in any manner contributed to the accident. The answer alleged that the persons in the Hurla car were engaged in a joint enterprise; that if plaintiff received injuries from the collision, they were occasioned by the negligence of Francis Hurla in operating the car and through plaintiff's negligence.

The defendant Zirkle in his answer admitted he was driving the car of John Lane when the collision occurred; alleged the accident was caused by the negligence of the driver of the Hurla car, and that the persons in the Hurla car were engaged in a joint enterprise.

Francis Hurla who was driving the Hurla car testified that the county road near the intersection was being repaired and was rough that a ridge of dirt two feet high was in the middle of the road; that when he was about 70 yards from the intersection he noticed a car coming from the south on the township road; the road running south was "quite up-grade"; that he first noticed the flash of the sun on the windshield of the Ford "on top of the hill;" that it was then about 200 yards south of the...