Saunders v. Prue

Decision Date05 May 1941
CourtKansas Court of Appeals

Appeal from the Circuit Court of Jackson County.--Hon. Albert A Ridge, Judge.


Judgment affirmed.

Louis R. Weiss and Mosman, Rogers & Bell for respondent, DeWitt Chevrolet Company.

(1) All the evidence introduced in this case, considered in the light most favorable to the plaintiff, failed to make a submissible case against the defendant, DeWitt Chevrolet Company, for the reason that it conclusively shows that said Prue was a thoroughly experienced, competent and qualified driver and that this defendant had no knowledge to the contrary. 42 C J., sec. 873, p. 1115; 6 American Jurisprudence, sec. 314, p 397; 3 Ruling Case Law, sec. 69, p. 145; 5 Blashfield, Cyclopedia Automobile Law & Practice, sec. 2924, p. 59; Drake v. Rowan, 216 Mo.App. 663, 272 S.W. 101; Allen v. Coglizer (Mo. App.), 208 S.W. 102; Tourkakis et al. v. Billman (Mo. App.), 71 S.W.2d 1084, 1085, 1086; Humphrey v. Ownby (Mo. App.), 104 S.W.2d 420; Neubrand v. Kraft et al., 169 Iowa 444, 151 N.W. 455; L.R.A. 1915D, 691; Davis v. Shaw (La.), 142 So. 301; Saunders Drive-It-Yourself Co. v. Walker (Ky.), 284 S.W. 1088; Eklof v. Waterson et al. (Ore.), 285 P. 201; Brown v. Fields et al., 83 P.2d 144. (2) There being no evidence that the defendant, DeWitt Chevrolet Company, was negligent in intrusting its automobile to Gustus E. Prue, its acts could not be the proximate cause of plaintiff's injuries. See authorities under Point 1. (3) There was no sufficient evidence of negligence on the part of defendant, DeWitt Chevrolet Company, to authorize its submission to a jury, and the action and ruling of the trial court on the motion for a new trial in setting aside the verdict and judgment in favor of plaintiff was correct. Near v. St. Louis & S. F. R. Co., 168 S.W. 1189; Grange v. C. & E. I. R. Co., 69 S.W.2d 955, 960, 961; Van Raalte v. Graff et al., 253 S.W. 223; Steel & Wire Co. v. Edmonds & Allgier, 136 S.W.2d 123; Cases cited under Point 1. (4) The court erred in giving Instructions 1 and 2 offered by the plaintiff over the objections of the defendant, DeWitt Chevrolet Company, for the reason that the same exacted of said defendant a higher degree of care than is required by law, and for the further reason that the same are confusing. Borgstede v. Wallbauer (Mo.), 88 S.W.2d 373, 374; Conroy v. St. Joseph Ry., Light, Heat & Power Co., 134 S.W.2d 93; Webster's New International Dictionary.

Gossett, Ellis, Dietrich & Tyler for appellant.

(1) The defendant, DeWitt Chevrolet Company, is liable to plaintiff for the negligence of defendant Prue because it negligently entrusted an automobile to defendant Prue when it knew, or in the exercise of ordinary care should have known, that Prue was an inexperienced, incompetent and unqualified driver. American Law Institute Restatement of Torts, sec. 390; 42 C. J. 1078; 68 American Law Reports, 1013; 100 American Law Reports, 923; 1 Ruling Case Law, Permanent Supplement, 673; Blashfield, Cyclopedia of Automobile Law, 1332; Daily v. Maxwell, 152 Mo.App. 415; Roark v. Stone (Mo. App.), 30 S.W.2d 647; State ex rel. v. Harris (Mo. App.), 77 S.W.2d 846; T. Priestly v. Skourup, 142 Kan. 127, 45 P.2d 852; Rus v. McDonnell, 214 Ala. 47, 106 So. 175; Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Levy v. McMullen, 169 Miss. 659, 152 So. 899; Laney v. Blackburn, 25 Ala.App. 248, 144 So. 126; Kanananakoa v. Badalamente, 119 Cal.App. 231, 6 P.2d 338; NuGrape v. Knott, 47 Ga.App. 539, 171 So. 151; Brady v. B. & B. Ice Co., 242 Ky. 138, 45 S.W.2d 1051, 100 A. L. R. 916; Rounds v. Phillips, 168 Md. 120, 177 A. 174; Tanis v. Eding, 265 Mich. 94, 251 N.W. 367; Worshan-Buck v. Isaacs (Tex.), 56 S.W.2d 268; Smith v. Nealy, 162 Wash. 160, 298 P. 345; Elliott v. Harding, 107 Ohio State 501, 140 N.E. 338; Hopkins v. Droppers, 184 Wis. 400, 198 N.W. 738; Owensboro Undertaking & Liberty Association v. Henderson (Ky.), 115 S.W.2d 563. (2) The negligence of DeWitt Chevrolet Company is intrusting its automobile to an incompetent driver was the proximate cause of plaintiff's injuries. 1 Berry on Automobiles, secs. 4.406, 710; Gordon v. Bedard (Mass.), 164 N.E. 374; McCloskey v. Salveter & Stewart Inv. Co., 317 Mo. 1156; Northern v. Chesapeake & Gulf Fisheries Co. (Mo.), 8 S.W.2d 982; Kidd v. Rock Island, 310 Mo. 28; Mrazek v. Terminal Railroad Ass'n, 341 Mo. 106; McWhorter v. Dahl Chevrolet Co. (Mo. App.), 88 S.W.2d 240. (3) The evidence was amply sufficient to require submission to the jury of the issue of DeWitt Chevrolet Company's negligence and the court erred in sustaining that defendant's motion for new trial. Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 509; Parker v. Nelson Grain & Milling Co., 330 Mo. 95, 48 S.W.2d 906; Rouchene v. Gamble Construction Co., 338 Mo. 123, 89 S.W.2d 58; Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 553; Thompson v. St. Joseph Railway, Light, Heat & Power Co., 345 Mo. 31, 131 S.W.2d 574; Greenie v. Nashua Buick Co. (N.H.), 158 A. 817; Anderson v. Daniel (Mass.), 101 So. 498; Owens v. Carmichael's U-Drive Autos (Cal.), 2 P.2d 580; Seinsheimed v. Burkhart (Tex.), 122 S.W.2d 1063; Elliott v. Harding (Ohio), 140 N.E. 338; Lloyd v. Noakes (Pa.), 96 Pa.Super. 164; Buckingham v. Gilbert, 163 N.C. 306; Reid v. Owens (Utah), 69 P.2d 265.



--This is an action for personal injuries and property damages. There was a verdict and judgment in favor of plaintiff in the sum of $ 333. The motion for a new trial, filed by the defendant, Prue, was overruled and he has not appealed. The motion for a new trial filed by the defendant, DeWitt Chevrolet Company, was sustained by the court on the ground that it should have given said defendant's instruction in the nature of a demurrer to the evidence. Plaintiff has appealed.

The facts show that on July 19, 1934, plaintiff was hauling water by the use of a wooden tank set upon the running gear of an ironwheeled wagon to which was hitched a team of mules, all owned by him. He and one Peryn Clark were seated on the tank, plaintiff driving. The wagon was proceeding toward the east, down a slight grade and, on Highway No. 40, when it neared Blue Springs, it was struck in the rear by an automobile being driven eastwardly by the defendant, Prue, and owned by the defendant, DeWitt Chevrolet Company. The collision resulted in personal injuries to plaintiff and damage to his wagon.

In his petition, and at the trial, plaintiff sought to recover against the defendant, DeWitt Chevrolet Company, on the ground that it was negligent in intrusting the automobile to the defendant, Prue, when it knew, or by the exercise of ordinary care, should have known, that he was incompetent and not qualified to drive the automobile upon the public highways and that, by reason of its action, in so doing, it was legally liable for all of the damages suffered by the plaintiff, caused by Prue's negligence the incompetency.

The collision occurred about noon of a clear day. The wagon was in view of Prue for a mile or more before he collided with it. There is a cross-road which comes into Highway No. 40 from the south about an eighth of a mile east of the point of the collision. The road can be seen plainly for a mile or more by a person approaching from the west in an automobile. Highway No. 40 is paved with an eighteenfoot slab with dirt shoulders on each side. The tank-wagon and the mules were being driven partly off of the paved portion of the highway and partly on the dirt shoulder to the south. As the tank-wagon was thus proceeding eastwardly a Model T Ford pickup truck turned west into the highway from the cross-road and proceeded westwardly along the north side of the highway. The truck and tank-wagon passed each other about an eighth of a mile west of the cross-road and, as they passed, there was at least ten feet of space between the two vehicles.

The driver of the truck, testifying for plaintiff, stated that the car being driven by Prue approached the tank-wagon at a rate of speed of about forty or forty-five miles per hour, sounding no horn, and upon the south side of the road; that when his truck was twenty-five or thirty feet west of the tank-wagon the latter was violently run into from the rear by the Chevrolet car being driven by Prue; that he saw the collision through his rear vision mirror; that the right front fender of the Chevrolet struck the left hind wheel of the wagon, the tank-wagon and mules being thrown into the ditch on the south side of the road; that the combined length of the mules and the wagon was about twenty-six to thirty feet and that the Chevrolet stopped eight or ten feet ahead of the mules; that the Chevrolet was stopped headed east partly on and partly off of the pavement; that the witness was proceeding at a rate of speed of about twenty or twenty-five miles per hour; that he did not see the Chevrolet start around the tank-wagon until the witness had passed it, at which time the Chevrolet "started to go around."

The circumstances, under which the Chevrolet car was intrusted to Prue by the defendant, DeWitt Chevrolet Company, are as follows:

The company was a dealer in new and used automobiles, with its place of business located on 15th Street in Kansas City. Mr. Ben Thurman was its authorized agent and salesman. Mr. Jenkins was its sales-manager. For about two weeks prior to July 19, 1934, Mr. Thurman had been trying to interest Mr. Prue, who lived in Kansas City, in the purchase of a new 1934 Chevrolet automobile and, as a part of his solicitation, urged him to take such a car out and drive it and show it to his family. Mr. Prue owned a 1925 Model T Ford car...

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1 cases
  • Sweat v. Brozman
    • United States
    • Kansas Court of Appeals
    • December 2, 1946
    ... ... utterly failed to prove that Joseph Eckler and Donald Bishop ... were agents or employees of appellants. Saunders v ... Prue, 151 S.W.2d 478, 235 Mo.App. 1245; Kurz v ... Greenlease Motor Car Co. (Mo. App.), 52 S.W.2d 498; ... Mulanix v. Reeves, 112 ... ...

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