CASES

IN THE

SUPREME COURT

KANSAS.

LEAVENWORTH V. HATCH.

[57 KANSAS, 57.]

NEGLIGENCE OF DRIVER IS NOT IMPUTABLE TO ONE RIDING BY INVITATION.-If a person, riding in a carriage by invitation of the owner, is injured through the negligence of the driver, the latter's negligence cannot be imputed to the person injured where the driver had sole charge of the vehicle, and of the animal drawing it, and the person so riding had no control over either. Hence, the driver's negligence would not bar a recovery, and it is not erroneous to so instruct the jury.

Action for damages for personal injuries. The plaintiff, Ella B. Hatch, at the invitation of Mr. Vantuyl, whose family she was visiting, in Leavenworth, Kansas, rode out one evening in a carriage to the Soldiers' Home, in company with two other ladies, to attend a concert. The carriage was driven by a man named Schroeder. When they returned, after the concert was over, the night was quite dark, and Schroeder drove upon a pile of broken stone, in the street, which overturned the carriage and threw it down a high embankment below where they were passing. The plaintiff, who was on the back seat of the buggy, had her leg broken by the fall, and this action was brought to recover damages from the city for the injury. A portion of Fourth street, on which the accident happened, was macadamized and was out of repair, and it became necessary for the city to place more broken stone in the places where it had become worn. For this purpose the city had stone hauled along the street and thrown off in different places, where it was broken up and left in piles until it could be measured, and then spread out over the street wherever required. The driver, in returning, drove off

the macadamized part of the road and attempted to pass along on the dirt road where, according to some of the evidence, much of the travel went, and, in doing so, met with the accident as stated. The plaintiff alleged, in her petition, that she had been put to the expense of two hundred and fifty dollars for medical attendance, and two hundred and fifty dollars more for nurses and other assistants by reason of the injury, and had sustained damage because of the injuries received in the sum of four thousand five hundred dollars. Judgment for five thousand dollars was demanded. The jury were instructed that, if they found in favor of the plaintiff, they might render a verdict for any sum within the limit of five thousand dollars. They were further instructed as stated in the opinion. A verdict for three thousand two hundred dollars was returned in favor of the plaintiff, and the city appealed.

C. F. W. Dassler and J. W. Haussermann, city attorney, for the plaintiff in error.

Baker, Hook & Atwood, for the defendant in error.

59 ALLEN, J. It is insisted on behalf of the city that there was not sufficient evidence to support the verdict in this case. The witnesses do not all agree as to the condition in which the street was left on the evening the plaintiff was injured, but there is testimony showing that there were piles of stone extending diagonally across the street, and that most of the travel was off the macadamized part of the street on the dirt. The strongest evidence in favor of the plaintiff is to the effect that it was impracticable to drive on the macadam, and that it was necessary to go to the side. It was clearly shown that the night was dark, and that no lights were placed at this point at the time, nor were there any barriers to warn a person approaching of danger. We think there is evidence tending to show that the work was being carried on in a negligent manner, and that the street was in a dangerous condition. The question of fact, so far as there in dispute in the evidence, has been resolved by the jury in the plaintiff's favor.

60

The principal question of law presented is, whether the negligence of the driver, if he was negligent, should be imputed to the plaintiff and held to bar her recovery. The court instructed the jury that if the driver had sole charge of the vehicle, and she had no control over him, his negligence could not be imputed to her and would not bar her recovery. Counsel for plaintiff in error cite in support of their position the case of Pri

deaux v. Mineral Point, 43 Wis. 513; 28 Am. Rep. 558; Slater v. Burlington etc. Ry. Co., 71 Iowa, 209; Morris v. Chicago etc. Ry. Co., 26 Fed. Rep. 22. These cases, it must be conceded, give some countenance to the contention of the plaintiff in error, but, so far as they do, we think they are in conflict with the current of decisions on the question: Tompkins v. Clay Street R. R. Co., 66 Cal. 163; Danville etc. Road Co. v. Stewart, 2 Met. (Ky.) 119; Wabash Ry. Co. v. Shacklet, 105 Ill. 364; 44 Am. Rep. 791; Transfer Co. v. Kelly, 36 Ohio St. 86; 38 Am. Rep. 558; Bennett v. New Jersey R. R. etc. Co., 36 N. J. L. 225; 13 Am. Rep. 435; Cuddy v. Horn, 46 Mich. 596; 41 Am. Rep. 178. The foregoing were cases in which the plaintiff was a passenger in a public conveyance, and it was held that the servant in charge of the conveyance in which he was riding was not his servant in such sense that his negligence ought to be imputed to the plaintiff: See, also, Chicago etc. Ry. Co. v. Groves, 56 Kan. 601; Chicago etc. R. R. Co. v. Ransom, 56 Kan. 559. In the case of Dyer v. Erie Ry. Co., 71 N. Y. 228, it was held: "Where one travels in a vehicle over which he has no control, but at the invitation of the owner and driver, no relationship of principal and agent arises 61 between them; and, although he so travels voluntarily and gratuitously, he is not responsible for the negligence of the driver where he himself is not chargeable with negligence, and where there is no claim that the driver was not competent to control and manage the team."

In the case of Little v. Hackett, 116 U. S. 366, the authorities were very fully reviewed in an opinion by Mr. Justice Field, and it was held: "A person who hires a public hack and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence, or prevented from recovering against a railroad company for injuries suffered from a collision of its train with the hack, caused by the negligence of both the managers of the train and of the driver."

We think the law well settled that where the person injured has no right to control the movements of the driver, and does not, in fact, exercise any control, the negligence of the driver cannot be imputed to him.

Complaint is made of the refusal of the court to give other instructions, but we think so much of those asked as was good and applicable to the case was given in the general charge. Complaint is also made of the statement to the jury that the plaintiff might recover any amount not exceeding five thousand

dollars, because it is said that only four thousand five hundred dollars was asked in the petition for the injury, and that there was no proof whatever concerning the value of the medical services and expense for nurses. If the verdict and judgment exceeded four thousand five hundred dollars, this might present a question requiring consideration, but as the verdict is for only three thousand two hundred dollars, we fail to see any substance in the complaint, there being no complaint that the 62 court gave any other erroneous charge as to the measure of damages.

The judgment is affirmed.

All the justices concurring.

NEGLIGENCE OF DRIVER IS NOT IMPUTABLE TO ONE RIDING BY INVITATION.-The negligence of the driver of a private vehicle cannot be imputed to one invited to ride with him, where the person so riding had no control of the driver, or of the vehicle, and was free from blame; and the driver's negligence is, therefore, no bar to the other's recovery where the latter is injured: See Reading Tp. v. Telfer, 57 Kan. 798; post, p. 355, and note thereto.

GUILD V. ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY.

[57 KANSAS, 70.]

SPECIFIC PERFORMANCE-CONTRACT FOR PURCHASE AND SALE OF LAND-ENCUMBRANCES AS A BAR.-The existence of mortgages and other encumbrances amounting to much less than the contract price to be paid by a purchaser for land, and which can be completely discharged out of the proceeds of the sale, does not constitute a bar to an action by the vendor to enforce the specific performance of a contract for the sale of the land, especially where such encumbrances were known to the vendee, because the court is able to provide for the conveyance of a clear title to the vendee; and the existence of unpaid taxes, even though unknown to the defendant, furnish no obstacle to the performance of the contract, where the fund is ample for their payment.

DEFINITIONS-THERE IS A DISTINCTION BETWEEN APPRAISERS AND ARBITRATORS.-Persons selected to value property sold are simply appraisers, and not arbitrators, as arbitration is properly the submission of a matter, in controversy or dispute between the parties, to the decision of one or more persons.

ARBITRATION AND AWARD-APPRAISERS REVOCATION OF AUTHORITY.—A mere naked arbitration is generally held revocable at the pleasure of either party at any time before an award is made; but if there is an agreement for a valid consideration for the purchase and sale of lands, or chattels, to be appraised by third parties, and if such appraisement is rather an incident of the contract than a single subject of agreement between the parties, one party cannot retain an advantage gained by the contract and revoke the authority of the appraisers.

VENDOR AND PURCHASER-SETTLEMENT OF PAST DIFFERENCES AS A CONSIDERATION.-The settlement of past differences on the basis of the purchase and sale of land at a value to be fixed by appraisers is a valid consideration for the agreement to purchase and sell, and sufficient to render the contract irrevocable. ARBITRATION AND AWARD-WHEN AUTHORITY OF APPRAISERS CANNOT BE REVOKED.-After a contract for the purchase and sale of lands, at a price to be fixed by appraisers, to be selected by the parties, has been executed upon the consideration of a settlement of past differences, and where such appraisers are afterward named in accordance with the provisions of the contract, and a majority of them make a valuation of the property, the authority of the appraisers cannot be revoked at the pleasure of one of the parties, for the contract is then complete in all its parts and enforceable specifically. Such persons, appointed to fix a value, are merely appraisers, though they are denominated in the contract as "arbitrators."

ARBITRATION AND AWARD – SETTING ASIDE APPRAISEMENT.-IF FRAUD, MISTAKE, OR MISCONDUCT OF APPRAISERS is relied upon as a ground for setting aside an appraisement of lands made by them, it must be pleaded, where they are selected in accordance with the agreement of the parties.

Action for the specific performance of a contract, instituted by Charles Dunn, as plaintiff, against the Atchison, Topeka & Santa Fe Railroad Company. The plaintiff, Guild, was administrator of the estate of Charles Dunn, deceased. The contract provided for the purchase and sale of certain lands, at a price to be fixed by appraisers, who were to be selected by the parties in accordance with the provisions of the contract. These appraisers were denominated in the contract "arbitrators." The plaintiff alleged the execution of the contract sued upon, the full performance of all its conditions on his part, and asked judgment for the sum found by the "arbitrators" or appraisers to be the value of the land described in the contract. The defendant admitted the execution of the written agreement, but denied generally the other allegations of the petition, and alleged that the premises were encumbered by two mortgages for a large amount, which were past due and unpaid. It also denied that one C. W. Jewell, a third man called in by the two appraisers mentioned below, was ever legally appointed an arbitrator, or that any arbitration was ever had under the contract, and alleged that prior to any action by the arbitrators fixing the amount to be paid for the land, the agreement to arbitrate was revoked by the defendant, and notice thereof served on the plaintiff and arbitrators. By the terms of the contract, each party was to select one "arbitrator," and the two "arbitrators," in case of failure to agree, were to select a third "arbitrator"; and the decision of a majority was to be binding and final. The railroad company designated P. I. Bonebrake, and Dunn chose J. B. Whitaker. They