Anderson v. Anderson

• Decision Date: 09 November 1935
• Docket Number: 31803.
• Citation: 50 P.2d 995,142 Kan. 463
• Parties: ANDERSON v. ANDERSON.
• Court: Kansas Supreme Court

50 P.2d 995

142 Kan. 463

ANDERSON v. ANDERSON.

No. 31803.

Supreme Court of Kansas

November 9, 1935

Syllabus by the Court.

Automobile guest, to recover from host for injuries sustained in wreck must establish that defendant was either willing that damage should occur or acted with such reckless disregard of consequences, with realization that danger was imminent, as to amount to willingness to injure (Rev. St. Supp. 1933 8--122b).

In action for injuries sustained by automobile guest when automobile overturned as result of blowout, evidence that host was driving at speed of 65 miles an hour with rear tire which was somewhat worn held insufficient for jury (Rev. St Supp. 1933, 8--122, 8--122b).

1. In an action for damages sustained in an automobile wreck where defendant was the owner and driver of the car and plaintiff was a passenger in the same car, in order for plaintiff to recover she must establish that defendant was either willing that the damage should occur or acted with such reckless disregard of consequences, with a realization that danger was imminent, as to amount to willingness to injure.

2. In such an action as that described in the above syllabus, the record is examined, and it is held that the plaintiff did not meet the requirements of the above syllabus in her proof, and the demurrer of defendant to her evidence should have been sustained.

Appeal from District Court, Scott County; Ray H. Beals, Judge.

Action by Neva Anderson against G. E. Anderson. From a judgment for plaintiff, defendant appeals.

Reversed with directions.

Allen B. Burch and A. W. Geiger, both of Wichita, C. E. Vance, C. R. Hope, and A. M. Fleming, all of Garden City, and A. B. Mitchell, of Lawrence, for appellant.

R. D. Armstrong and Don B. Lang, both of Scott City, for appellee.

SMITH Justice.

This was an action to recover damages for injuries sustained when plaintiff was injured by the overturning of an automobile in which she was a passenger. Judgment was for plaintiff. Defendant appeals.

Since plaintiff was a passenger in the car and is suing the driver, the case cames under the provisions of R. S. 1933 Supp. 8--122b, commonly known as the automobile guest statute. In order for her to recover, she must establish that the driver of the car was guilty of gross and wanton negligence.

The petition alleged that on the day in question defendant was driving a 1931 Buick sedan; that plaintiff was the daughter-in-law of defendant, and had been invited by defendant to ride in the car, together with her husband and her husband's brother and the wife of defendant, from Scott City to Hutchinson, that defendant had on the left rear wheel of his car a worn-out balloon tire, and that this tire was in such condition as to be highly dangerous to the safety of the driver and passengers in the car when it was operated at an excessive speed.

The petition further alleged that defendant was an experienced driver of automobiles, knew the defective condition of the tire in question, and on the morning of the accident had been expressly warned about the defective condition of the tire; that plaintiff was not an experienced driver and did not know about the condition of the tire.

The petition alleged that along the side of the road on which defendant was driving there was a ridge of gravel about 12 or 18 inches high, and that it was necessary to the safety of occupants of the automobile that the driver exercise great care not to permit the car to run onto this ridge of gravel, especially when the car was being operated at high speed. It was alleged that defendant gradually increased the speed of the car until it was going at a speed of between 65 and 70 miles per hour; that, while it was being operated at that speed, the left rear tire gave way, causing the car to swerve sharply, get out of defendant's control, and finally turn over, throwing plaintiff out and injuring her.

The petition then alleged that defendant was guilty of gross and wanton negligence, in that he knew about the unsafe condition of the tire; knew that by driving at a high rate of speed the likelihood that the tire would collapse would be greatly increased; knew that it would be dangerous to the occupants of the car to drive it against the ridge of gravel or to permit the car to get out of his control and swerve into this ridge of gravel; and that defendant well knew that, if the tire in question should break down while the car was being operated at a high rate of speed, the car would almost certainly get beyond his control and would almost certainly turn over and injure the occupants, and that, knowing all these things, defendant operated his car at a high rate of speed in gross and wanton disregard of the safety of plaintiff.

The answer was a general denial, and alleged that plaintiff's injuries were the result of her own negligence, that she assumed the risk incident to any defects in the car or tire, and that plaintiff was the daughter-in-law of defendant and a member of his household. At the close of plaintiff's case defendant demurred to her evidence.

The case was tried before a jury. The result was a verdict for plaintiff. General questions were answered by the jury. Defendant moved for judgment on the special questions, notwithstanding the general verdict; to set aside certain answers; and for a new trial. These motions were all denied and judgment was entered for plaintiff. From this judgment defendant appeals.

R. S. 1933 Supp. 8--122b, provides in part as follows: "That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payments for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle."

Under the provisions of that statute it was necessary that plaintiff show such conduct on the part of defendant as proved that he was willing to injure the passengers in the car, or that he was so indifferent to the consequences, with a realization that the catastrophe was imminent, as to amount to a willingness to injure. See Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573.

This subject was treated in Sayre v. Malcom, 139 Kan. 378, 31 P.2d 8, 9. There this court said: "In Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573, it was held the statute above quoted relieves the operator of an automobile from liability to his guest resulting from negligence, as that term is distinguished from wantonness. Cases are there cited distinguishing wantonness, as the term was used, from negligence, and pointing out that conduct properly characterized under these terms differs not in degree, but in kind, the one denoting lack of due care under the circumstances, the other denoting conscious or intentional misconduct from which injury to some one is likely to result and with a reckless disregard of such consequence."

The rule above laid down has been followed several times by this court. See Ewing v. Edwards, 140 Kan. 325, 36 P.2d 1021; also Aduddell v. Brighton, 141 Kan. 617, 42 P.2d 555.

With this rule in view, we will examine the record in this case. The defendant in his brief places the speed at 65 miles per hour. The...