Barrell v. Wessel

• Decision Date: 29 May 1953
• Docket Number: No. 7921,7921
• Citation: 65 So.2d 818
• Parties: BARRELL et al. v. WESSEL et al.
• Court: Court of Appeal of Louisiana — District of US

Page 818

65 So.2d 818

BARRELL et al. v. WESSEL et al.

No. 7921.

Court of Appeal of Louisiana, Second Circuit.

May 29, 1953.

James R. Eubank and McSween & McSween, Alexandria, for appellants.

Stafford & Pitts, Alexandria, for appellees.

HARDY, Judge.

This is a suit by plaintiff, individually and on behalf of her three minor children, for the recovery of damages resulting from the death of her husband, allegedly caused by the negligence of defendant Wessel. Made parties are the liability insurers of Wessel.

The accident which is the basis of the action occurred about 4:00 a. m. on March 12, 1950, approximately 12 miles west of Junction City, Kansas. Defendant Wessel was the driver of the automobile which crashed into the abutment of a bridge, fatally injurying the decedent Barrell, and a companion, one Steve Ostrowsky.

An exception of no cause and no right of action was overruled and after trial on the merits there was judgment in favor of defendants rejecting plaintiff's demands, from which plaintiff has appealed.

There is little dispute on the facts, which are almost entirely agreed. Defendant Wessel, accompanied by the decedent, Barrell, and two other companions, all being in the armed service, left their base at Ft. Riley, Kansas at about 5:30 p. m. on March 11, 1950 and proceeded, in the accomplishment of a joint venture, to the City of Salina, Kansas where they occupied themselves with entertainment at a local night club. At about 1:00 or 2:00 o'clock a. m. on the morning of March 12th the party, consisting of defendant and two companions, Barrell and Ostrowsky, began their return to Ft. Riley. It is on the question of time that the only conflict of testimony develops. Defendant insists that the party left about 1:00 o'clock a. m., but plaintiff testified that she talked to her husband, the decedent, by long distance telephone at about 2:00 a. m. We think the fixing of the exact time is immaterial. Some hour and a half after leaving Salina the defendant drove his car into the abutment of a highway bridge and his two companions, both of whom were asleep at the time, were fatally injured.

Concededly the right of plaintiff to recovery in the instant case is governed and controlled by the law of the State of Kansas, particularly the statute G.S.1949, § 8-122b, which reads:

'Right of guest to collect damages from owner or operator. 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 * * * 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.'

It is obvious that plaintiff's rights must be determined by the construction of the statute cited. Accordingly we are here concerned only with an interpretation of the expression 'gross and wanton negligence' under the undisputed facts of the case.

The factual aspects which are urged in support of plaintiff's rights are that the defendant Wessel had been without sleep for a period of some twenty-two hours at the time of the accident; that his two passengers fell asleep immediately upon beginning the return trip from Salina; that defendant had consumed one or two bottles of beer during the course of the evening, and that the use of the car heater with little, if any, ventilation was conducive to a feeling of drowsiness. On the basis of these facts it is urged that Wessel should have known that he was in danger of falling asleep. This development of cause and result leads, of course, to the conclusion that Wessel's disregard of the existing conditions amounted to gross and wanton negligence within the contemplation of the statute. Counsel for plaintiff in support of this conclusion urges the following authorities:...