Simpson v. Townsley, 6397.

• Decision Date: 28 October 1960
• Docket Number: No. 6397.,6397.
• Citation: 283 F.2d 743
• Parties: Daniel Arthur SIMPSON, Appellant, v. Will L. TOWNSLEY, Helen Townsley Coogan and Russell T. Townsley, a copartnership, doing business as The Great Bend Daily Tribune, Tribune, Inc., a corporation, The Goldenbelt Truck Lines, Inc., a corporation, and The United States Fidelity and Guaranty Company, a corporation, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

283 F.2d 743 (1960)

Daniel Arthur SIMPSON, Appellant, v. Will L. TOWNSLEY, Helen Townsley Coogan and Russell T. Townsley, a copartnership, doing business as The Great Bend Daily Tribune, Tribune, Inc., a corporation, The Goldenbelt Truck Lines, Inc., a corporation, and The United States Fidelity and Guaranty Company, a corporation, Appellees.

No. 6397.

United States Court of Appeals Tenth Circuit.

October 28, 1960.

Thomas C. Boone, Hays, Kan. (Nuss & Nuss, Great Bend, Kan., were with him on the brief), for appellant.

Richard C. Hite, Wichita, Kan. (Robert E. Russell, Topeka, Kan., Warren H. Kopke, Great Bend, Kan., Marvin Thompson, Russell, Kan., W. A. Kahrs, Robert H. Nelson and H. W. Fanning, Wichita, Kan., were with him on the brief), for appellees.

Before PHILLIPS, LEWIS and BREITENSTEIN, Circuit Judges.

PHILLIPS, Circuit Judge.

On November 3, 1957, a collision occurred between a motor vehicle being driven by Daniel Arthur Simpson¹ and a motor vehicle being driven by Meda Oneida Smith,² near the intersection of Susank-Galatia Road and U. S. Highway 281 in the State of Kansas, resulting in injuries to Simpson. Thereafter, on December 30, 1958, Simpson and Rosalie Simpson, his wife, executed and acknowledged a writing entitled "covenant not to sue" running to Smith and her husband, Elmer Smith, in which the Simpsons covenanted, in consideration of $10,000 paid to them by Smith and Elmer Smith, "to forever refrain from instituting, pressing or in any way aiding any claim, demand, action, or causes of action, for damages, cost, loss of service, expenses or compensation for, on account of, or in any way growing out of, or hereinafter to grow out of an accident which happened to * * * Simpson on or about the 3rd day of November, 1957, at or near the intersection of Susank-Galatia Road with U. S. 281" and agreed to hold the Smiths harmless "from any damages to ourselves resulting or to result from said accident."

In driving such motor vehicle, Smith, at the time of the collision, was acting as the agent, servant, or employee of Will L. Townsley, Helen Townsley Coogan, and Russell T. Townsley, a copartnership doing business as The Great Bend Daily Tribune, Tribune, Inc., a corporation,³ and the Goldenbelt Truck Lines, Inc.⁴

On December 30, 1958, the Simpsons entered into a written agreement with the Smiths and the Farm Bureau Mutual Insurance Company, Inc.,⁵ in which for a recited consideration of $10,000 paid to them by the Smiths and the Insurance Company, the Simpsons agreed to hold the Smiths and the Insurance Company "harmless from any further claim in respect to Policy No. 12788 in said insurance company" and to "release and relinquish all rights to collect from" the Smiths and the Insurance Company "under the above mentioned policy" and further agreed "in the event of any further claim * * * to defend any suit or go to any trouble or expense to protect the" Smiths and the Insurance Company "from any further claim under the above referred to policy, and to assume full responsibility for any necessary further payment or compromise of such claims." The agreement further provided that in the event the policy of insurance referred to above should be held to be primary and a policy of liability insurance covering the Tribune partnership and corporation secondary, and in the event the Insurance Company should be held liable to the extent of its policy for the payment of a judgment recovered by the Simpsons against such Tribune partnership and corporation, then the Simpsons would allow the Tribune partnership and corporation a credit on any judgment obtained against them by the Simpsons up to the sum of $15,000.

The agreement to hold harmless further provided that in the event "any claim, demand, action or cause of action for damages or for breach of contract" should be brought against Smith and Elmer Smith, or the Insurance Company "by any of the other defendants named" in a case pending in the District Court of Barton County, Kansas, "entitled Alfred R. and Hulda C. Wilson, as parents, guardians and next of kin of Alfred Leroy Wilson, deceased, versus" the Tribune partnership and corporation and Smith "by reason of any of the provisions of policy No. 12788," that the Simpsons would "protect and hold harmless" Smith, Elmer Smith, and the Insurance Company "from any damages by reason of said demand, action, suit or judgment that might be brought or obtained by any or all of said other defendants."

After the execution of such covenant not to sue and agreement to hold harmless, Simpson filed an action in the United States District Court for the District of Kansas against the Tribune partnership and corporation, Goldenbelt, and the United States Fidelity and Guaranty Company. In his complaint Simpson alleged the occurrence of the collision and that at the time of the collision Smith was driving such motor vehicle as the agent, servant, and employee of the Tribune partnership and corporation and Goldenbelt and was acting in the course of her employment as such agent, servant, and employee. In his complaint Simpson further alleged specific acts of negligence on the part of Smith, that the collision was the direct and proximate result of the negligence and want of care of Smith, and that her negligence is imputed to the Tribune partnership and corporation and Goldenbelt.

In their amended answer the Tribune partnership and corporation and Goldenbelt set up the covenant not to sue and alleged that it was a full satisfaction and a complete defense to Simpson's alleged cause of action against them.

In his amended reply Simpson set up the agreement to hold harmless and alleged that it reserved Simpson's right to proceed against the Tribune partnership and corporation and Goldenbelt.

The Tribune partnership and corporation and Goldenbelt filed a motion for summary judgment. The motion was sustained and from a judgment in favor of the defendants below, Simpson has appealed.

It is clear that Simpson's alleged cause of action is based on the doctrine of respondeat superior. His complaint contains no allegations of negligence on the part of the Tribune partnership, or corporation, or Goldenbelt. Rather, it alleges that "the negligence of Meda Oneida Smith is likewise the negligence of the defendants * * *."

Under the law of Kansas there is no distinction between the liability of a principal for the tortious acts of his agent and the liability of a master for the tortious acts of his servant. In both relationships the liability is grounded upon the doctrine of respondeat superior. Under that doctrine the liability of the master to a third person for injuries inflicted by a servant in the course of his employment is derivative and secondary and that of the servant is primary. Where the liability of the master is not predicated on any delict on his part, but...