Kippen v. Jewkes
| Decision Date | 08 August 1958 |
| Docket Number | No. 5829.,5829. |
| Citation | 258 F.2d 869 |
| Parties | Joe KIPPEN, Appellant, v. Wanda May JEWKES, an infant, William Jewkes, her next friend, and William Jewkes, in his own right, as heir of Alice Jewkes and as next friend of plaintiff Wanda May Jewkes, for herself and as heir of Alice Jewkes, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
COPYRIGHT MATERIAL OMITTED
Don J. Hanson, Salt Lake City, Utah (Edwin B. Cannon, Salt Lake City, Utah, was with him on the brief), for appellant.
J. Richard Bell, Salt Lake City, Utah, for appellee, Wanda May Jewkes.
Before PHILLIPS, PICKETT, and LEWIS, Circuit Judges.
On December 7, 1954, a collision occurred on U. S. Highway 40-50 in Utah, between an automobile being driven by William Jewkes and a truck owned and operated by Wendel P. Mortenson. At the time of the collision the truck was stalled on the highway. As a result of the collision Alice Jewkes, wife of William and mother of Wanda Jewkes, died and William and Wanda suffered personal injuries.
Wanda, by William as her next friend, and William brought this action against Mortenson and Kippen to recover damages as surviving heirs of Alice Jewkes and damages for the personal injuries suffered by each of them, respectively.
By its verdict, which was divided into several parts, the jury found in favor of Wanda and against Mortenson and fixed her damages at $6,500, found against William and found in favor of Kippen.
At the close of the evidence the plaintiffs interposed a motion for a directed verdict against both Kippen and Mortenson. The trial court reserved its ruling on the motion for a directed verdict. Thereafter, and after the jury had been discharged, the plaintiffs interposed a motion for a new trial and in the alternative for judgment notwithstanding the verdict. Thereafter, the court made the following ruling:
Judgment was then entered against Kippen for $6,500 and he has appealed.
The evidence established the following facts, with respect to which there was no substantial dispute.
Kippen operates a ranch and sheep raising business near Morgan, Utah. In the course of his operations he and his employees have occasion to travel from his ranch near Morgan to his winter range, located near Wendover, Utah, and to return to his Morgan ranch.
Mortenson lives near Morgan, Utah, and during certain seasons of the year engages in hauling of sheep for sheepmen in the area, utilizing for that purpose a motor vehicle truck, which he owns. For hauling the sheep he charges a flat fee or lump sum, fixed by taking into consideration such variables as mileage, loading and road conditions. Mortenson maintains and keeps his truck in repair and furnishes at his own expense the gas and oil consumed in hauling. He testified at the trial that he hauls sheep for "a lot of people," including Kippen, but at times when there is no demand for sheep hauling the works at odd jobs for wages.
About a week before the accident, Kippen entered into an arrangement with Mortenson for the latter to haul a load of sheep from Kippen's Morgan ranch to his winter pasture near Wendover. About two days later Kippen entered into an arrangement with Mortenson to haul a second load of sheep from his ranch near Morgan to such winter pasture. Kippen agreed to pay Mortenson $50 for hauling the first load and $55 for hauling the second load. Under the arrangement, Mortenson was to transport the sheep on a truck which he owned and operated and in which Kippen had no interest. While there was perhaps only one feasible direct route between the Morgan ranch and the winter range, Mortenson testified that he selected the route for both trips. Mortenson paid for the gas and oil and all other expenses incurred in the transportation. Kippen paid Mortenson $105 for the two trips and made no withholding on account of tax deductions or Social Security deductions.
Mortenson hauled the first load of sheep about December 1 and the second load of sheep about December 7. Kippen rode with Mortenson on the first trip and Kippen's son rode with Mortenson on the second trip from Morgan to the winter range. Kippen testified that neither he nor his son accompanied Mortenson on the haulage trips to see that the sheep were "taken care of and in good shape" and that "when you hire a man you do not overload" and "you depend" on the driver. It was customary for either Kippen or his son to remain at the winter range. However, after the delivery of the second load, due to favorable weather conditions, they decided to return to Morgan, utilizing their own truck for that purpose. Mortenson also decided to return with his truck to Morgan. The return journeys by Kippen and his son and by Mortenson commenced at approximately the same time. When they had traveled part way the Kippen truck broke down and Kippen and his son continued their journey as passengers in Mortenson's truck. While all three were traveling in the Mortenson truck it stalled on the highway. While the truck was so stalled William drove his car into the rear portion...
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