Tice v. Crowder

• Decision Date: 07 November 1925
• Docket Number: 25,357
• Citation: 240 P. 964,119 Kan. 494
• Parties: B. F. TICE, Appellee, v. LELIA CROWDER, Appellant
• Court: Kansas Supreme Court

240 P. 964

119 Kan. 494

B. F. TICE, Appellee, v. LELIA CROWDER, Appellant

No. 25,357

Supreme Court of Kansas

November 7, 1925

Decided July, 1925.

Appeal from Leavenworth district court; JAMES H. WENDORFF, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MOTOR VEHICLES--Liability for Injury--Vehicle in Charge of Third Person--Presumption of Owner's Liability. In an action against the owner of an automobile for damages resulting from an automobile collision occasioned by the negligent operation of the trespassing car by another than the owner, proof of ownership does not make a prima facie case of liability, or raise a presumption of liability, on the part of the owner. Plaintiff must offer evidence that the driver was acting in some capacity for the owner, and within the scope of the employment.

2. SAME--Liability of Owner--Sufficiency of Evidence. The evidence considered and held to be insufficient to establish liability of the owner of an automobile for its negligent operation by another.

Benjamin F. Endres and Keefe O'Keefe, both of Leavenworth, for the appellant.

J. K Codding, of Leavenworth, for the appellee.

OPINION

BURCH, J.:

The action was one to recover damages occasioned by an automobile collision on a street of the city of Leavenworth. Plaintiff recovered, and defendant appeals.

There was ample evidence that the car which struck plaintiff's car was negligently operated, and of injury to plaintiff's person and property. Defendant admitted she owned the trespassing car. Plaintiff testified Arbor Gough was driving the car at the time of the accident and there were no passengers in it. The petition alleged Arbor Gough was defendant's employee, and was engaged in conducting her business. The question is whether there was any substantial evidence to sustain these allegations.

The accident occurred about 9:30 Sunday morning, October 1, 1922. Plaintiff called as a witness J. P. Reavy, who at the time of the accident was a patrol-wagon driver for the city. He testified as follows:

"I saw Arbor driving this car at times before that. I saw people in it, but do not know whether they were passengers or not."

Reavy's cross-examination, which will be quoted later, must be classified with the evidence for defendant. Defendant presented a demurrer to plaintiff's evidence, which was overruled.

The evidence for defendant may be summarized as follows: Lelia Crowder, a widow, who lives in her own home on Cheyenne street in Leavenworth, is the daughter of Lee Gough, who keeps a restaurant and lives on Shawnee street. Lee Gough has two sons--Arbor, nicknamed "Dickey," and William, nicknamed "Dooley." At the time of the trial in May, 1923, Dickey was not quite sixteen years old and Dooley was twenty-three. The boys lived with their father. The car was a Cadillac sedan, purchased by Lelia Crowder in February or March, 1922, for use as a taxicab. Immediately after it was purchased she turned it over to Dooley, who thereafter had charge of it. He kept it in a garage on Delaware street, operated it, accounted to his sister for its earnings, and received twenty-five per cent commission for his services. She owned two other cars, which were operated as taxicabs by Ray Collins and Will Saunders. Dickey had never been employed by his sister as a taxicab driver and had never used the car for carrying passengers. He had used it to take his mother riding, had taken his girl riding in it, and might go off with it if he found it unlocked, but he had no business with it and had been told to stay out of it. On the morning of October 1 Dooley was in charge of the car. He took it from the garage, drove it to the restaurant, and leaving it at the curb in front, went in for his breakfast. Sometime afterward Reavy and another police officer appeared at the restaurant and inquired of Lee Gough for Dickey. Dickey was not there. The car was standing at the curb, but the bumper was broken, the lamp on the right side was broken, and the right fender was bent. The officers had come from the scene of the accident. Dooley had not been out of the restaurant, and he learned from the officers what had occurred. On cross-examination, Reavy, as a witness for plaintiff, testified as follows:

"When I told Lee Gough that the car had been in a wreck he was surprised. He did not think the car had left there. I told him, 'Here, your bumper is broke,' and I took half of the bumper out of the police car and handed it to him right there in front of his place, and then he was convinced that the car had been moved out of there. I did not see Mrs. Crowder down there. I saw Dooley there (at Lee Gough's restaurant) after the collision. Lee Gough said Dickey had just left. He did not say that Dickey had just drove the car up, but Dooley had just finished his breakfast and the car was sitting there. Lee Gough said, 'Why, he just now left here.' I knew Dickey was the one that had this car. I talked over that bumper with Lee Gough, and convinced him that the car had actually been moved from the curbstone while Dooley was in eating his breakfast, and he acted like a surprised man at the whole transaction."

Dickey testified he had not been driving the car for his sister, and that, without permission from anybody, he took the car for a pleasure trip to the Soldiers' Home. When he came back he did not tell anyone at the restaurant about the accident, because he knew his father would give him "the devil." His father took him to the police station. On cross-examination Dickey said he had driven his father's Haines touring car as a taxicab "last summer."

In rebuttal plaintiff produced a witness who had seen Dickey driving the car once with his mother in it; two police officers who were familiar with Mrs. Crowder's taxicabs and who testified they had seen Dickey driving the car several times "last summer," "during the summer," "summertime," "summer months," with people in it; and one witness who knew Mrs. Crowder's taxicabs and had seen Dickey driving a car, but he did not know whether it was Mrs. Crowder's blue sedan or Lee Gough's Haines car. No witness for defendant was impeached, and no testimony was produced to dispute any fact testified to by defendant's witnesses, unless the rebuttal testimony raised a question with reference to extent of Dickey's use of the car.

Upon the foregoing evidence the jury returned a verdict for plaintiff for $ 3,500, and returned the following remarkable special findings of fact:

"Question 4. At the time of said collision, or on said day, was the said Arbor Gough in the employ of said Lelia Gough? A. Yes.

"Question 5. If you answer the last preceding 'Yes,' then state when he was employed by the said Lelia Crowder, and for what purpose. A. Last summer and fall, driving taxi.

"Question 6. If you answer question 4 'Yes,' state what if any business the said Arbor Gough was transacting for Lelia Gough on the day and at the time in question. A. Driving taxi.

"Question 7. Do you find from the evidence that Willie, commonly called 'Dooley' Gough, had charge of the automobile of Lelia Crowder just before Arbor Gough took possession of it and while it was standing at the curb in front of the restaurant of Lee Gough, on the day in question? A. Yes.

"Question 8. Did Arbor Gough take the automobile of Lelia Crowder, the defendant, without her knowledge, to use for his own pleasure or convenience, on the day of the collision, and was Arbor Gough so using said automobile at the time of said collision? A. No.

"Question 9. Did Lelia Crowder know that Arbor Gough had taken her said automobile on the day in question, and that said Arbor Gough was in possession of it at the time of said collision? A. No.

"Question 9 1/2. What, if anything, had Lelia Crowder, the defendant, to do with the operation or control of the Cadillac automobile on the day of the accident and at the time thereof? A. As owner.

"Question 16. Is it not true that the Cadillac automobile was being used by Arbor Gough in some way not connected with the business of Lelia Crowder, the owner of said automobile, and that Arbor Gough was acting for himself, on the day in question and at the time of the accident? A. No.

"Question 17. If you answer question 16 'No,' then state what business Arbor Gough was transacting for Lelia Gough on the day in question and at the time of the accident. A. Driving taxi."

Admission by defendant that she owned the automobile established just one fact--that she owned the automobile. Possession is an incident of ownership, and for some purposes there is a presumption that ownership carries possession with it. Plaintiff testified, however, that Arbor Gough had possession of the automobile at the time of the accident, and legal theory became of no importance when the fact came in that a person other than the owner had possession. Who was Arbor Gough, and for what purpose was he using the car?

Not very long ago livery was an essential transportation facility. If a team and buggy belonging to a liveryman, but driven by some one else, were seen on the highway, the first thought was the driver was a bailee. If the driver were known to be an employee of the liveryman, an observer might speculate on whether the driver was acting for himself or for his employer, but could have no basis of fact on which to rest a definite conclusion one way or the other. If the driver were accompanied by his wife and children, the inference would be he was not acting for his employer. If he were accompanied by one whose appearance and belongings indicated he was a traveler, the inference would be the traveler had hired the team and buggy with a driver. If a farm laborer should be found on the road from the farm to town, going...