Link v. Miller

Citation300 P. 1105,133 Kan. 469
Decision Date03 July 1931
Docket Number29,991
PartiesDAISY M. LINK, Appellee, v. F. P. MILLER, W. B. DAVIES and BERNICE DAVIES, Appellants
CourtKansas Supreme Court

Decided July, 1931.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILES--Injury to Occupant--Liability of Operator--Joint Enterprise. The fact that several people are riding in a car bound for a common destination and for a common purpose does not necessarily make the journey a joint venture, so as to impute the negligence of the driver of the vehicle to all the passengers. There must be in addition a mutual privilege of direction and control.

2. SAME--Joint Enterprise--Jury Question. The question of whether one of a party riding in an automobile is engaging in a joint venture with the driver, or is his guest, is for the jury and must be decided from all the surrounding facts and circumstances.

3. SAME--Injury to Occupant--Contributory Negligence--Failure to Act. Where a passenger in an automobile could not see her apparent danger till a few seconds before the collision which caused her injury occurred, and the evidence showed that any efforts which she might have made to avoid the injury would have been unavailing, her failure to do anything to prevent the collision is not such contributory negligence as to bar her recovery of damages for injuries sustained therein.

Dallas W. Knapp, Carl Ziegler, Charles E. Welch, all of Coffeyville and Grant Waggoner, of Baxter Springs, for the appellants.

Harold McGugin, of Coffeyville, for the appellee.

OPINION

SMITH, J.:

This is an action to recover damages for injuries suffered in an automobile collision. Plaintiff recovered. Defendants appeal.

The facts are simple. Appellee was riding in the rear seat of an automobile. Appellant Miller was driving the car east on highway 166. His wife, the sister of appellee, was in the front seat with him. The brother of Mrs. Miller and Miss Link had died at a town in Missouri. They were on the way to the funeral. The day before, Mrs. Miller, who lived at Coffeyville, had called up Miss Link, who lived in Oklahoma. She told her that if she would come to Coffeyville on the train they would take her to the funeral and bring her back to Coffeyville. When the car reached the intersection of highway 166 with highway 7 a collision occurred between it and a car driven by appellant, Bernice Davies, which was being driven east thereon. Both cars were traveling at the rate of from thirty to thirty-five miles an hour when the collision occurred. Miss Link was injured. She brought suit against F. P. Miller, who was driving the car in which she was riding, and Bernice Davies, who was driving the other car, and her father, W. B. Davies, who was riding with her. The jury returned a general verdict for plaintiff against Mr. Miller and Bernice Davies. It excused W. B. Davies from liability. It also answered special questions as follows:

"1. Do you find that at the time of the injuries to the plaintiff, Daisy M. Link, that she and the defendant, F. P. Miller, were engaged in a common enterprise, as that term is defined by the court? A. No.

"2. Do you find that the defendant, Miller, in driving to the scene of the collision crossed other intersections of highway, approaching said intersections and crossing the same at a rate of speed more than fifteen miles per hour? A. We don't know.

"3. If you answer the above question 'Yes,' do you find that the plaintiff made any protest to him as to such speed or cautioned him with reference thereto? A. .

"4. If you answer the above question 'Yes,' please state what you find that the plaintiff, Daisy M. Link, did in the way of protesting to or cautioning the defendant, F. P. Miller? A. .

"5. How wide do you find that the main intersection of the highway was where the collision occurred? A. Thirty feet.

"6. When the plaintiff was at a point 200 feet from the point where the collision occurred, were there any obstacles which would have prevented her from seeing the Davies automobile coming south toward the intersection which she was about to cross? A. No.

"7. If the plaintiff, Daisy M. Link, had looked to the left when she was at a point 200 feet from the point where the collision occurred, or at any time after that time and prior to the collision, could she have seen the Davies car approaching the point where the collision occurred? A. Yes.

"8. What, if anything, do you find the plaintiff did to prevent the collision of the car in which she was riding with the Davies car? A. No control.

"9. If you find for the plaintiff and against the defendant, F. P. Miller, please state fully all the negligence of which you find the defendant, Miller, guilty. A. Violating state law regarding rate of speed on the intersections.

"10. If you find for the plaintiff, how much do you allow her for: (a) Loss of time? A. $ 500. (b) Pain and suffering? A. $ 250. (c) Medical expenses? A. $ 250. (d) Permanent injury? A. .

"11. At what rate of speed was the Miller car moving at the time of the collision? A. We don't know.

"12. Was the Davies car standing still at the time of the collision? A. No.

"13. If you answer the preceding question in the negative, at what rate of speed was the Davies car moving at the time of the collision? A. We don't know.

"14. Had any part of the Davies car passed the center of the road running east and west at the time of the collision? A. No.

"15. Do you find the defendant, Bernice Davies, in driving the Davies car was on her own separate business? A. Yes.

"16. Was the defendant, Bernice Davies, guilty of any negligence that contributed to and was the proximate cause of any injury to the plaintiff? A. Yes.

"17. Did the plaintiff warn or remonstrate with the defendant, F. P. Miller, on account of the rate of speed he was driving said car as it approached, or drove across, said intersection where the collision happened? A. No."

Appellants contend that the judgment should be reversed because, first, appellant Miller and appellee were engaged in a joint venture when the injury occurred and that the negligence of Miller in driving upon the intersection at an unlawful rate of speed is attributable to appellee; second, that appellee was guilty of contributory negligence, which caused her injury; and third, that the negligence charged by appellee in her petition and found by the jury was not the proximate cause of the injury. The other questions raised will be settled when we have answered the above.

As to the contention of appellant that Miss Link and Mr. Miller and his wife were engaged in a joint venture, the jury answered that in the negative. No complaint is made of the instructions under which that was submitted. The evidence was that Mrs. Miller had called her sister and invited her to come to Coffeyville and ride to the funeral with them. There is no evidence that she was bearing any of the expenses. She was riding in the back seat. The evidence that she had any control over the management or direction of the car was very meager. Appellant calls attention to the fact that all were on their way to the funeral. He argues that since they were on the journey for a common purpose the venture was a joint one. The fact, however, that the trip upon which people are engaged has a common purpose is not conclusive upon the question of joint venture. All the surrounding facts and circumstances must be considered. The decision turns upon whether there was mutual purpose and equal privilege of direction and control and whether they were traveling in the same vehicle in pursuit of a common object. (Anthony v Kiefner, 96 Kan. 194, 150 P. 524, and cases there cited.) The instruction under which this question was submitted to the jury was drawn upon that theory. The jury answered the question in the negative. There was ample evidence to warrant it in reaching that...

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