McCraner v. Bond

• Decision Date: 08 February 1930
• Docket Number: 29,126
• Citation: 129 Kan. 802,284 P. 603
• Parties: W. J. MCCRANER, Appellee, v. R. A. NUNN and W. E. BOND, Partners as the Nunn-Bond Motor Company, Appellants
• Court: Kansas Supreme Court

284 P. 603

129 Kan. 802

W. J. MCCRANER, Appellee, v. R. A. NUNN and W. E. BOND, Partners as the Nunn-Bond Motor Company, Appellants

No. 29,126

Supreme Court of Kansas

February 8, 1930

Decided January, 1930.

Appeal from Sedgwick district court, division No. 1; J. EVERETT ALEXANDER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Liability for Injury to Third Person--Relationship as Basis of Liability. A dealer in automobiles, for whom another is engaged in selling automobiles on commission, who in driving his own car causes injuries to a stranger, is not liable for the resulting injuries from negligent driving unless the relationship of master and servant or principal and agent exists between the dealer and the driver and the driver is actually engaged at the time of the injury in furtherance of the business of the master or the principal.

2. SAME--Negligence. Upon an examination of the testimony it is held that the relationship of the dealer and the driver was not that of master and servant or principal and agent, and further that the driver must be regarded as an independent contractor, for whose negligence the dealer is not liable.

H. W. Hart, Glenn Porter, Enos E. Hook, Edward H. Jamison and Getto McDonald, all of Wichita, for the appellants.

Chris L. Aikman, C. A. Matson, I. H. Stearns and E. P. Villepigue, all of Wichita, for the appellee.

OPINION

JOHNSTON, C. J.

This was an action to recover damages for injuries resulting from a collision of two automobiles at the intersection of roads in the country near Wichita. McCraner was driving a car from the north on Oliver street, and riding with him were his wife and two of their children. The other car was being driven by Clyde Jones, going from the east towards the west, upon what is called an extension of Twenty-first street. McCraner saw the Jones car, not only as he entered the intersection, but had noticed before that it was coming at a high rate of speed, which he believed at the time to be forty-five or fifty miles per hour. There was testimony tending to show that McCraner was driving at about twenty miles per hour as he approached the intersection. He could have stopped his car at a distance of eight feet, but did not attempt to do so. After driving into the intersection he speeded up his car, but was struck by the Jones car and pushed in a southwest direction into the ditch. The jury found in favor of McCraner, and with their verdict the following special findings were returned:

"1. Did the plaintiff W. J. McCraner see the car driven by Clyde Jones when he, McCraner, was twenty feet from the intersection? A. Yes.

"2. If you answer the last question in the affirmative, state whether or not W. J. McCraner saw at that time that the Jones car was coming from the east at a high rate of speed. A. Yes.

"3. When W. J. McCraner first saw the Jones car coming from the east, could he have stopped his car or slackened the speed of his car and avoided the collision? A. Yes.

"4. Did W. J. McCraner make any effort to slacken his speed or avoid the injury? A. Yes.

"5. If you answer the last question in the affirmative, state what was done in this respect by the said W. J. McCraner. A. Increased his speed after he realized the danger.

"6. Did W. J. McCraner, after seeing the car driven by Jones approaching from the east, attempt to beat it across the intersection? A. Yes.

"7. If you find from the evidence that Clyde Jones was guilty of negligence in operating his automobile, state the acts upon which you base your finding of negligence. A. Excessive speed too close to the intersection and not watching for other traffic.

"8. If you answer question No. 1 in the affirmative, could McCraner by taking reasonable precaution have avoided the collision? A. No.

"9. If you find for plaintiff, state how much you allow him for: (a) Personal injuries [$ 500]; (b) medical and hospital expenses for W. J. McCraner [$ 250]; (c) medical and hospital expenses for Mrs. Opal McCraner [$ 50]."

One of the main points argued is that Jones was not the agent of the motor company, that was sued, but was engaged in selling cars for that company on commission. He purchased a car from the firm for which he paid cash, and which he used in the selling of cars. It will be observed that Jones was not made a party to the action, but that it was brought alone against the motor company. Among other things, they answered and defended upon the ground that Jones was not their employee or agent had no authority to operate the car for them, and was not acting within any scope of their employment when the collision occurred. It was shown that the business arrangement between them was that Jones should operate his own car in selling automobiles and was to receive six per cent commission on the sales made. He was to receive in advance $ 25 per week, and when the sales were made he was to be paid the difference between the amount of the commission earned and the sum advanced. There was the further arrangement that he would be furnished oil and gas up to the value of $ 15 per month. A dealer's license tag was attached to his car. Jones, who was a witness for plaintiff, stated that defendant did not have any right to control the car he was operating. "That he was allowed to hunt his own prospects, and go where and when he desired, and that there was never any restriction placed by Nunn and Bond about where he would go, how he would go to any certain place, or anything of that kind. That he could report in there when it was convenient for him." At times automobiles had been shown to prospects at defendants' garage, but whether shown there or demonstrated in other places, was a matter within the discretion of Jones. No control of any kind was exercised by the...