Toadvine v. Sinnett

• Decision Date: 11 January 1919
• Docket Number: 21,860
• Citation: 178 P. 401,104 Kan. 111
• Parties: O. L. TOADVINE, Appellee, v. A. F. SINNETT, Appellant
• Court: Kansas Supreme Court

178 P. 401

104 Kan. 111

O. L. TOADVINE, Appellee, v. A. F. SINNETT, Appellant

No. 21,860

Supreme Court of Kansas

January 11, 1919

Decided January, 1919.

Appeal from Rush district court; ALBERT S. FOULKS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

AUTOMOBILE ACCIDENT--Driver Using Car on Private Business Without Permission--Owner Not Liable. Under the facts stated in the opinion, the defendant is held not liable for the injury caused by his automobile when used by his agent's wife in violation of his express orders.

H. L Anderson, and S. I. Hale, both of La Crosse, for the appellant.

W. H. Russell, Frank U. Russell, and J. E. Andrews, all of La Crosse, for the appellee.

West J. Burch, J., concurring specially. Porter, J., joins in the special concurrence. Mason, J., dissenting.

OPINION

WEST, J.:

This action was brought to recover damages caused by the defendant's car running into a horse belonging to the plaintiff. The car was driven by the wife of the defendant's tenant on his ranch. From a judgment for the plaintiff this appeal is taken.

The defendant was in California, and in charge of his ranch was Mr. C. O. Young, who testified, in substance, that he was general manager. Upon advising his landlord of the condition of the feed, the latter instructed him to sell the cattle on the place, and deposit the proceeds in a bank at La Crosse. Finding a buyer with whom he was not acquainted, Mr. Young thought it best to deposit the check promptly, and it being necessary for him to help the buyer drive the cattle some distance, he sent the check to La Crosse by his wife. The Youngs owned a car which was in a garage at Rush Center, and they intended to go with it on a trip to Missouri the next morning, so Mrs. Young took the defendant's car, in which rode her father and mother and also a man who went along to bring back the Young car, and on the way from Rush Center to La Crosse she ran into the plaintiff's horse, causing the injury sued for. She testified that she volunteered to take the check to La Crosse, because she wanted to be in shape to start the next morning for Missouri, and wanted to get the automobile to start in. Mrs. Young worked on the ranch, doing general housework and cooking, having no specific contract with the defendant as to what she should receive, but she did receive her board and that of her children for her services, and she had a contract with the defendant to care for the poultry and receive therefor one-half of all the poultry raised.

"Q. 40. And if it had not been that you and your husband intended to start for Missouri next morning you would not have made that trip that day at all? A. No, sir.

. . . .

"Q. 43. Did you go for anything else on that trip other than to deposit the check? A. I went for the purpose to bring our own car out from Rush Center.

. . . .

"Q. 34. Did you have any other purpose in making the trip to La Crosse, other than depositing the check your husband had received from the sale of the cattle? A. No, sir."

The court found that

"The Youngs had been forbidden by the defendant to use his car, and Mrs. Young took the same that day without the knowledge of the defendant, knowing that he did not want her to use it. Neither Mr. nor Mrs. Young had ever used defendant's car since getting one of their own, until that day."

Mrs. Young testified, although he was her cousin, "he would haul other people around" but never her. Notwithstanding the finding above quoted, the court concluded as a matter of law that the plaintiff was entitled to recover.

It is contended that the defendant, having expressly forbidden the use of his car by the Youngs, cannot be held liable for the unauthorized use of it on the occasion in question, although one purpose of the errand was to deposit the check.

The plaintiff insists that Mrs. Young was in fact on an errand as agent for the defendant, and therefore her use of his car was on his behalf, regardless of his prohibition upon her use thereof. Reliance is placed upon the case of A. T. & S. F. Rld. Co. v. Randall, 40 Kan. 421, 19 P. 783, holding the railroad liable for injury to a horse which was being used without the owner's consent by a boy employed by the railroad to round up some cattle which had escaped from its train, and also upon the case of Martin v. Railway Co., 93 Kan. 681, 145 P. 849, holding the defendant liable for injuries to a brakeman who had been directed by the conductor to go forward and act as fireman while the latter took charge of the locomotive. In the Randall case, the railroad company's agents employed the young man to help round up and drive back the cattle. In carrying out his employment he took his father's horse, without the latter's knowledge or consent, but of course he was still acting as agent for the railway company, and was using very natural, and apparently proper, means to fulfill his agency. He had not been refused the use of the horse, and did not take it over his father's prohibition. In the Martin case, the conductor, who had charge of the train and was responsible for its management, directed the brakeman to act, temporarily, as fireman, owing to circumstances which the conductor deemed sufficient to justify such direction, and it was held that the brakeman in obeying this order was acting in the line of his duty, so as to bind the defendant for an injury caused by a defective brake on one of the drivewheels of the locomotive.

Generally a man having...