Bailey v. Resner

Decision Date28 January 1950
Docket Number37659,Nos. 37646,s. 37646
Citation168 Kan. 439,214 P.2d 323
PartiesBAILEY v. RESNER et al. BAILEY v. RESNER.
CourtKansas Supreme Court

Syllabus by the Court.

1. To state a cause of action under G.S.1935, 8-122b, the petition must allege facts tending to show that the host's conscious conduct indicated a reckless disregard and complete indifference and unconcern for the probable consequences of his wrongful act, and where the petition fails in this respect, a demurrer thereto must be sustained.

2. In an action for personal injuries under the guest statute, G.S.1935, 8-122b, the petition alleges that the 23 year-old defendant driver of the host car was an epileptic and had been so afflicted for two or three years; that he and his parents, the other two defendants, knew all about his affliction and that it caused him to suddenly lose all self-control, but that plaintiff had no knowledge of it; that defendants knew the driver would lose complete control of the car and that the car would be a dangerous instrumentality in his hands and the lives of all occupants endangered if he suffered an epileptic seizure; but that defendants caused, allowed and required Raymond Resner to drive the car with plaintiff riding therein as an invited guest knowing that the disease with which Raymond was afflicted caused him to suddenly lose consciousness and control of himself and that he was a dangerous and unsafe driver; that such acts on the part of the defendants amounted to wantonness which was the proximate cause of plaintiff's injuries. Other allegations are more fully set out in the opinion. The petition is examined and it is held: The allegations are insufficient as a matter of law to constitute wantonness on the part of the defendants, and therefore the petition does not state a cause of action under the guest statute.

3. G.S.1935, 8-122b examined and held not to violate section 18 of the bill of rights of the state constitution, following Wright v. Pizel, Kan., 214 P.2d 328.

Jerry E. Driscoll, of Russell, argued the cause, and Richard M. Driscoll, also of Russell, was with him on the briefs for R. N. Resner and Pauline Resner, appellants in case No. 37,646, and for Raymond Resner, appellee in case No. 37,659.

C. R. Holland, of Russell, argued the cause, and Walker Wm. Smith, also of Russell, was with him on the briefs for Georgia Mae Bailey, appellee in case No. 37,646, and appellant in case No. 37,659.

The opinion of the court was delivered by

ARN, Justice.

This is an action for personal injuries sustained by plaintiff while riding in an automobile as the guest of defendants, and is brought under the guest statute G.S.1935, 8-122b. The defendants R. N. Resner and Pauline Resner are husband and wife and owners of the automobile, and their son Raymond Resner, the other defendant, was driving it at the time of plaintiff's injuries. A demurrer by Mr. and Mrs. Resner to plaintiff's petition was overruled and they appeal (No. 37,646). A separate demurrer by Raymond to the same petition was sustained, and from that order plaintiff has appealed (No. 37,659). The two appeals have been consolidated and to avoid confusion as to the identity of the parties, they will be referred to as plaintiff and defendants.

The pertinent paragraphs of the petition follow:

'2. That the defendant, R. N. Resner, also known as Rudolph N. Resner, was on the 24th day of October, 1946, the owner of one 1940 2-door Ford Sedan car which was used by R. N. Resner or Rudolph N. Resner and Pauline Resner, his wife, for their family use and enjoyment.

'3. That on the 24th day of October, 1946, the said plaintiff was invited to make a trip to Hoisington, Kansas, by said R. N. Resner or Rudolph N. Resner and Pauline Resner, his wife, which trip was to accomplish some mission or errand for the said R. N. Resner and Pauline Resner, his wife, the purpose of which mission or errand being unknown to this plaintiff, but which invitation was accepted by this plaintiff.

'4. That the defendants, R. N. Resner or Rudolph N. Resner and Pauline Resner, are the father and mother of Raymone Resner, their son, who was of the approximate age of 23 years and who was afflicted with the disease of epilepsy and has been so afflicted for a period of approximately two or three years before said date of October 24, 1946, and which disease caused said Raymond Resner to suddenly lose consciousness and control of himself, a fact which was well known to the defendants, and each of them, but which was unknown to this plaintiff, and that said defendants and each of them knew, by reason of said condition of said Raymond Resner, that he was a dangerous and unsafe person to drive and operate a motor vehicle in that they knew or should have known that, if said Raymond Resner was attacked or had an epileptic seizure or epileptic fit, he would have no control over said car or automobile or over himself regardless of the speed at which he was operating said automobile at the time of said seizure, and knew or should have known that in the event that said Raymond Resner had or would have an epileptic seizure or fit while he was driving or operating said automobile that the lives of all occupants of such automobile, including the life of said Raymond Resner, would be subject to great danger and peril.

'5. That each of said defendants knew that in the event said Raymond Resner was attacked or had an epileptic seizure or epileptic fit while driving or operating said automobile that said automobile, in itself at such time, would be a dangerous instrument or agency to the lives of any person who might be a passenger or occupant of said automobile.

'6. That notwithstanding said knowledge on the part of said defendants, and which facts were unknown to this plaintiff, the said defendants caused said automobile to be driven and operated by said Raymond Resner for the purpose of making a trip from Russell, Kansas, to Hoisington, Kansas, and that at said time, the said defendants knew that in the event the said Raymond Resner had or was attacked by an epileptic seizure or epileptic fit while driving or operating the automobile in which this plaintiff, the defendant Pauline Resner, Mrs. Charles O. Frost, another invitee, and said Raymond Resner were passengers or occupants, that said automobile or car was a dangerous instrument or agency to the lives of said occupants or passengers and with said knowledge said defendants purposely, wantonly and negligently permitted said Raymond Resner to drive and operate said automobile.

* * *

* * *

'13. That all the injuries and damages, hereinbefore set out, and which were incurred and suffered by this plaintiff, were the approximate cause of the said defendants R. N. Resner and Pauline Resner, his wife, in permitting and allowing and requiring said Raymond Resner, their son, to drive and operate said automobile or motor vehicle and that by reason thereof, this plaintiff is entitled to damages against the defendants, and each of them, in the sum of $10,000.00'.

Plaintiff concedes that her relationship as a passenger in the defendants' car on the day of the accident was that of a 'guest', and that her action is predicated entirely upon the guest statute, G.S.1935, 8-122b, which provides:

'That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment 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.'

By many previous decisions of this court the phrase 'gross and wanton negligence' has been held to mean 'wantonness', Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573; Frazier v. Cities Service Oil Co., 159 Kan. 655, 664, 157 P.2d 822 and cases cited therein; Elliott v. Peters, 163 Kan. 631, 635-636, 185 P.2d 139.

What is wantonness and how should it be defined? This court has defined it in nearly a score of cases since the enactment of the guest statute in 1931, Stout v. Gallemore, supra; Koster v. Matson, 139 Kan. 124, 128, 30 P.2d 107; Sayre v. Malcom, 139 Kan. 378, 379, 31 P.2d 8; Ewing v. Edwards, 140 Kan. 325, 326-327, 36 P.2d 1021; Aduddell v. Brighton, 141 Kan. 617, 618-619, 42 P.2d 555; Anderson v. Anderson, 142 Kan. 463, 465-466, 50 P.2d 995; Cohee v. Hutson, 143 Kan. 784, 787-789, 57 P.2d 35; Blosser v. Wagner, 144 Kan. 318, 321, 59 P.2d 37; Donelan v. Wright, 148 Kan. 287, 290-291, 81 P.2d 50; Frazier v. Cities Service Oil Co., supra; Leabo v. Willett, 162 Kan. 236, 238, 175 P.2d 109; Elliott v. Peters, supra; Kniffen v. Hercules Powder Co., 164 Kan. 196, 206, 188 P.2d 980; Srajer v. Schwartzman, 164 Kan. 241, 248-249, 188 P.2d 971; Mason v. Banta, 166 Kan. 445, 447-448, 201 P.2d 654, and it may be said that the sum total of these definitions expounded in the past amounts to this--a wanton act is something more than ordinary negligence and yet it is something less than willful injury; to constitute wantonness, the act must indicate a realization of the imminence of danger and a...

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    ...is erroneous. The objection of Chicago Title and Guarantee as to the law stated in Instruction No. 17 is founded upon Bailey v. Resner, 168 Kan. 439, 214 P.2d 323, where the court '. . . (A) wanton act is something more than ordinary negligence, and yet it is something less than willful inj......
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