Beard v. Klusmeier

Decision Date20 March 1914
Citation164 S.W. 319,158 Ky. 153
PartiesBEARD v. KLUSMEIER.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Annie J. Brown Klusmeier against James S. Beard. From a judgment for plaintiff, defendant appeals. Affirmed.

Kelley & Cherry, of Bardstown, and J. W. S. Clements, of Louisville for appellant.

J. J Kavanaugh, of Louisville, for appellee.

MILLER J.

On the night of May 12, 1911, about 11 o'clock, the appellant, Beard, started from Seventh and Walnut streets, in Louisville, for a ride in his automobile, which he was driving, with the appellees Annie Brown Klusmeier, Miss Wagner, and two men, Jackson and Shields, as his guests. Miss Wagner was sitting on the front seat with Beard, while the other three guests were sitting on the rear seat. They drove southwardly on Seventh street until they reached Broadway, and then turning westwardly they proceeded down Broadway to about Twentieth street, when they turned and started back eastwardly upon their return journey, driving along the south side of Broadway. According to the testimony of Mrs. Klusmeier, appellant had been driving the machine at a high speed from the start; and, when they were several squares west of Thirteenth street upon their return trip, another automobile attempted to pass appellant, whereupon he increased his speed and participated in what the appellee terms a race, with the other automobile. She says she protested and begged to be allowed to get out of the automobile, but appellant refused to heed her request. At a point on Broadway between Thirteenth and Fourteenth streets, appellant's machine collided with a pile of brick, sand, and other building material, which had been stacked in the street. The automobile was damaged to an extent that practically unfitted it for further service, and Mrs. Klusmeier was thrown to the floor against the front seat, catching her foot in the footrail of the car, and severely wrenching it. She was carried to a physician's office, who found that one of the smaller bones of the foot had been broken; and she was later carried to her home. Appellant, Jackson, and Shields deny the charge of racing, or that appellant was guilty of fast or reckless driving. Mrs. Klusmeier brought this action against Beard for damages, and, having recovered a judgment for $1,733, Beard appeals.

The principal question for decision is this: What duty does the owner, who drives his automobile, owe to his guest, who accepts an invitation to ride with him? Appellant likens the case to that of one who is invited upon the premises of another, and insists that an invited guest must take the premises of the host as he finds them, and cannot complain of the conduct of his host in regard to keeping the premises in repair, or in the management of his personal property for the pleasure and enjoyment of the guest, unless guilty of gross negligence. Or, to state it differently, appellant contends that Mrs. Klusmeier was a licensee only; that the only duty owing to a mere licensee is the exercise of slight care, and that there is, consequently, no liability to a licensee except for gross negligence. On the other hand, appellee, arguing along the same line, insists that the host who invites a guest to come upon his property, or to use his property either expressly or impliedly, owes him the duty of exercising ordinary or reasonable care to keep the property or premises in a safe condition so that he will not be unreasonably exposed to danger or injury; and that, appellant having invited appellee to ride in his automobile, he owed her the duty to operate it in a careful and prudent manner, to use ordinary care to avoid striking patent obstructions on the street, and not to inflict injury upon her. The trial court took the appellee's view of the law, and instructed the jury that it was the duty of the appellant, Beard, to exercise ordinary care in the operation of his automobile to avoid injury to those who were in the automobile with him; and that if he ran his automobile at an unreasonable speed, thereby causing it to collide with the obstructions in the street, he was guilty of negligence and liable to appellee for any injury she may have sustained thereby.

It will be seen, therefore, that the decision of the case turns upon the question whether it was the duty of appellant, under the circumstances, to exercise ordinary care, or only slight care. If, under the circumstances, the law imposed upon appellant the duty of exercising only slight care, he was liable only in case he was guilty of gross negligence. In principle, we see no difference between the case of one who goes upon premises at the invitation of the owner, and the case of one who takes a ride at the invitation of the owner of an automobile, or other vehicle. In either case the relation of host and guest arises. The status of the social guest is, however, somewhat uncertain.

In 2 Sherman & Redfield on Negligence (5th Ed.) § 706, it is said: "The precise ground and degree of liability of a landlord to an invited guest having no business relations with him are not yet thoroughly settled. In our judgment, the same rule should be applied in such a case that would be applied if the property were personal instead of real. The host should always be held responsible to the guest for gross negligence; that is, for such want of care as would justify a suspicion that he was indifferent to the safety of his guest."

In the leading English case of Southcote v. Stanley, 1 Hurlst. & N. 246, it is said, in substance, that the liability of the owner of a dwelling house to a visitor who is there on his express invitation is no greater than to a licensee. The ground taken by Chief Baron Pollock and his associates seems to have been that a guest, gratuitously enjoying hospitality by express invitation at the house of his friend, must be presumed to have accepted the invitation with an understanding that he is to enjoy such things as his host possesses, and that to such a guest the host owes no legal duty to furnish him with anything better than he has for himself.

While a guest must take the premises as he finds them, with any risk owing to their disrepair, nevertheless the host is bound to warn his guest of any concealed danger upon the premises, known to the host.

In Cooley on Torts (Stud. Ed.) p. 735, it is said: "And the general rule supported by the authorities is that the owner or occupant of premises owes no duty to licensees and trespassers, further than to refrain from willful acts of injury." While the rule above announced has frequently been applied in cases between host and guest in the use of the host's vehicle, the authorities are not entirely satisfactory or uniform.

In Mayberry v. Sivey (1877) 18 Kan. 291, Mayberry invited Sivey to ride with him in his buggy. While riding they overtook Clark; and Mayberry, who was driving, having challenged Clark for a race, immediately whipped up his horse to pass Clark, whereupon Clark whipped up his team to prevent Mayberry from passing him. Sivey, seeing a race was imminent and being in great fear of bodily injury, begged Mayberry to stop his buggy and let him out, but Mayberry not only refused to do so, but, over the repeated requests of Sivey to stop, Mayberry continued to race recklessly, driving his horse at full speed until it struck a stone fence, which overturned the buggy and threw Sivey violently upon the ground, injuring him. Sivey sued Mayberry for damages, and recovered $400. In approving the verdict, the court said: "Th...

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