Willett v. McCormick

• Decision Date: 06 July 1946
• Docket Number: 36631.
• Citation: 161 Kan. 658,170 P.2d 821
• Parties: WILLETT v. McCORMICK et al.
• Court: Kansas Supreme Court

170 P.2d 821

161 Kan. 658

WILLETT v. McCORMICK et al.

No. 36631.

Supreme Court of Kansas

July 6, 1946

Appeal from District Court, Shawnee County, Division No. 3; Dean McElheeny, Judge.

Action by Glen Willett against O. McCormick and another, doing business as O. McCormick Rug Company, for damages sustained in a motor vehicle collision. Judgment for defendants, and plaintiff appeals.

BURCH J., dissenting.

Syllabus by the Court

In an action for damages growing out of a collision of a truck owned by defendants with an automobile in which plaintiff was riding, the petition stated that at the time of the collision the truck was owned by defendants and negligently driven by the agent, servant and employee of the defendants, but did not allege that at the time of the collision that driver of the truck was operating it on business for the defendant-- held, a demurrer to the petition because it did not state a cause of action was properly sustained.

Randal C. Harvey, of Topeka, for appellant.

Ralph W. Oman, of Topeka (Robert Stone, James A. McClure, Robert L Webb, and Beryl R. Johnson, all of Topeka, on the brief), for appellees.

SMITH Justice.

This is an action for damages alleged to have been sustained when a truck driven by the agent of defendants collided with an automobile plaintiff was driving. Judgment was for the defendants sustaining a demurrer to the petition. Plaintiff has appealed.

The paragraph of the petition in which we are interested reads as follows:

'Plaintiff's automobile was struck by a truck which was traveling north on Van Buren Street, which truck was owned by the defendants and negligently driven by the agent, servant and employee of the defendants. That the proximate cause of such collision was the carelessness and negligence of the driver of said truck, as hereinafter set out.'

It will be noted the above paragraph states that the truck was owned by defendants and negligently driven by the agent, servant and employee of the defendants. Defendants' demurrer to the petition was sustained because it did not contain any allegation that the truck at the time of the collision was being driven on the business of defendants. The plaintiff argues that in the absence of a motion to make more definite and certain a petition should be liberally construed in favor of the pleader. G.S.1935, 60-704, provides, amongst other things:

'The petition must contain: * * *

'Second. A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.'

He argues that it has been repeatedly held only the ultimate facts upon which plaintiff bases his right to recover need be pleaded. It is true petitions are liberally construed when no motion has been directed against them and it is also true that we construe pleadings with a view to do substantial justice between the parties. However, we have said many times that for one to recover on account of the negligence of the agent of defendant the agent must have been going about his master's business at the time of the injury. In Halverson v. Blosser, 101 Kan. 683, 168 P. 863, L.R.A.1918B, 498, we held:

'An owner of an automobile is not liable for injuries caused in its operation by others, unless such others were servants or agents of the owner, and acting in furtherance of his business.' Syl. 1.

We said:

'Liability of Blosser arises, if at all, on the relation of master and servant or principal and agent, and depends upon whether the son was engaged in the father's business at the time of the accident and was acting within the scope of his employment.' 101 Kan. at page 685, 168 P. at page 863, L.R.A.1918B, 498.

Should we hold that this petition stated a cause of action, we would be compelled to reverse what we held in Ruff v. Farley Machine Works Co., 151 Kan. 349, 99 P.2d 789. There we held that the petition stated a good cause of action because it alleged that an employee was using the defendant company's automobile at the time of the accident in furtherance of the business of the defendant company. The plaintiff obtained a verdict but it was set aside by the trial court because the court concluded as a matter of law that the agent was not at the time of the accident engaged in any duty for the defendant nor was he within the scope of his employment at the time. In the opinion we said:

'The liability of a master for the tortious

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