Bedenbender v. Walls, s. 39622

• Decision Date: 05 March 1955
• Docket Number: Nos. 39622,39623,s. 39622
• Citation: 280 P.2d 630,177 Kan. 531
• Parties: Carl BEDENBENDER, Appellant, v. William H. WALLS, Appellee. Beulah BEDENBENDER, Appellant, v. William H. WALLS, Appellee.
• Court: Kansas Supreme Court

Page 630

280 P.2d 630

177 Kan. 531

Carl BEDENBENDER, Appellant, v. William H. WALLS, Appellee.

Beulah BEDENBENDER, Appellant, v. William H. WALLS, Appellee.

Nos. 39622, 39623.

Supreme Court of Kansas.

March 5, 1955.

Rehearing Denied April 15, 1955.

Syllabus by the Court.

1. Under the guest statute (G.S.1949, 8-122b) one who is transported by the owner or operator of a motor vehicle as his guest, 'without payment for such transportation,' does not have a cause of action for damages against the owner or operator for injuries, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence on the part of such operator.

2. Although the operation of the guest statute in denying a right of recovery should not be extended, by construction, beyond the correction of the evils sought to be remedied, equally, the scope of the term 'guest' should not be so restricted as to defeat or impair those objectives.

3. In general, it may be said that the determination of the question whether a person is or is not a 'guest' within the meaning of the statute, depends largely upon the facts and circumstances of the particular case.

4. In determining the question whether a person is or is not a 'guest' within the meaning of the statute, among the many elements to be considered are the identity and relationship of the parties; the circumstances of the transportation; the nature, type and amount of 'payment'; the benefits or advantages resulting to the respective parties growing out of the transportation; and the nature and purpose of whatever nature, constituted a tangible benefit to the operator and was the motivating influence for furnishing the transportation; and the nature and purpose of the trip.

5. The word 'payment,' as used in the statute, is a variable term and is not restricted in meaning to a discharge in money of a sum due, or the performance of a pecuniary obligation. But, in order to preclude classification as a 'guest,' the 'payment,' of whatever nature, must constitute a benefit or advantage to the owner or operator which is a substantial consideration, motivating, and not merely incidental in character.

6. When the nature of the trip is purely for social purposes and mutual pleasure and enjoyment of the parties, payment of expenses, such as for gasoline, oil and meals, by the one being transported, does not constitute 'payment for such transportation' within the meaning of the statute.

7. Plaintiffs, husband and wife and defendant and his wife had been personal and social friends for years. They particularly enjoyed taking hunting trips together, and had done so on numerous occasions, alternating in the use of their automobiles. They had an understanding or agreement to the effect that when they drove defendant's car plaintiff husband would pay for gasoline, oil and meals for the four of them en route, and vice versa. This practice had been adhered to in the past. In the fall of 1951 the parties decided to go on a pheasant hunting trip to Nebraska. It was mutually understood and agreed that they would adhere to their past arrangement with respect to payment of the expenses above mentioned. On the morning agreed upon they started out in defendant's car. At noon they stopped for lunch. Plaintiff husband paid for it. Later on they stopped to buy gasoline. Plaintiff husband paid for it. Shortly thereafter, with defendant driving, the car was involved in a one-automobile collision. Plaintiffs sustained personal injuries, to recover for which each brought suit, alleging only ordinary negligence. The actions were consolidated for trial. Their evidence established only ordinary negligence. At the conclusion thereof defendant's demurrer thereto was sustained on the ground plaintiffs were 'guests' and that recovery was precluded by the provisions of the guest statute. Plaintiffs appealed.

Held: The nature of the trip, being purely for social purposes and mutual pleasure and enjoyment of the parties, payment of the mentioned expenses by plaintiff husband amounted to nothing more than reciprocal hospitality and the exchange of social amenities between friends, and did not thereby transform plaintiffs' status into that of 'passengers for pay,' when, absent such exchange, they would be 'guests,' and therefore did not constitute 'payment for such transportation' within the meaning of the statute.

Further held: The demurrer to plaintiffs' evidence was correctly sustained.

Payne H. Ratner, Jr., Wichita, argued the cause, and Payne H. Ratner, Louise Mattox, Russell Cranmer, Dale B. Stinson, Jr., Carroll F. Pope, Keith Eales, Cliff W. Ratner and William L. Fry, Wichita, Robert N. Allen, Chanute, and Charles F. Forsyth, Erie, were with him on the briefs for appellants.

Robert C. Foulston, Jr., Wichita, argued the cause, and George B. Powers, Samuel E. Bartlett, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Malcolm Miller, Robert N. Partridge and Robert M. Siefkin, Wichita, were with him on the briefs for appellee.

PRICE, Justice.

The question in these consolidated appeals concerns the application of the guest statute, G.S.1949, 8-122b.

The actions were to recover for personal injuries sustained in a one-automobile collision. Plaintiffs were riding in defendant's automobile, which was being driven by him. The actions were consolidated for trial below. Defendant was not charged with gross and wanton negligence, and it is not contended that plaintiffs' evidence established other than ordinary negligence. At the conclusion of plaintiffs' evidence a demurrer thereto was sustained on the ground recovery was precluded by the provisions of the guest statute. Plaintiffs have appealed.

Other than to state that the evidence followed closely the allegations of the petitions, it is unnecessary to discuss or summarize the pleadings. Plaintiffs' evidence was substantially as follows:

Plaintiffs are husband and wife and live in Chanute. Defendant and his wife reside in Wichita. The parties had been social and personal friends for years and particularly enjoyed going hunting together. They had gone on many such excursions in the past, such as to WaKeeney, Colony and on at least one occasion to Oklahoma. Some of these trips were taken in defendant's car; on others they had gone in plaintiffs' automobile. In connection with these hunting trips an agreement or understanding had existed with reference to payment of car expense and meals en route--that is, when they took defendant's car plaintiff husband paid for gasoline and oil and meals for the four of them, going and coming, and when they went in plaintiffs' car defendant paid those expenses. It appears that this arrangement had been carried out at all times in the past. It also appears that it had been customary for the husbands to share the driving, irrespective of whose car was used, and that the parties jointly determined the route to be taken.

In October, 1951, when defendant and his wife were guests in plaintiffs' home in Chanute, a pheasant hunting trip to Hastings, Nebraska, was discussed, and the parties agreed to start out on the morning of November 11th. Some discussion was had concerning a Nebraska hunting license and as to what would be the best route to take. It was understood that the prior agreement and arrangement with respect to payment of expenses would apply to this trip--that is, the party who furnished the car would be relieved of the out-of-pocket expense for fuel and meals en route. Plaintiffs drove to Wichita on the evening of November 10th, and the next morning the four of them started out for Nebraska in defendant's car. After they left Wichita defendant inquired if it would be all right to stop at Little River to visit some friends of his. Plaintiffs had no objection and so they stopped at Little River for a short time. At that place they hunted for ducks at a nearby pond, the finding none, proceeded on their way. At Great Bend the four of them had lunch, for which plaintiff husband paid. When they arrived at Osborne they stopped for gasoline and plaintiff husband paid for it. They proceeded northward toward Nebraska, with defendant driving. Plaintiff husband was in the right front seat and their wives were in the rear.

At a point north of Osborne plaintiff husband was examining a highway map and there was some conversation between him and defendant about there being a curve in the road a short distance ahead. Defendant was driving between sixty and seventy miles per hour when all of a sudden the car came upon the turn in the road. Defendant was unable to negotiate the turn and as a result the car went ahead into a sort of lane down across a railroad track and into a ditch. Plaintiffs' sustained personal injuries, which, for our purposes, need not be detailed. It also should be stated that a reasonable inference to be drawn from the evidence is that defendant and his wife undoubtedly would not have taken the hunting trip had it not been for the presence and company of plaintiffs, and on the basis of their mutual understanding concerning all phases of the trip, including the payment of expenses, selection of route to be traveled, and equal right on the part of all concerned with respect to such things as driving.

In sustaining the demurrer to the evidence the court commented:

'The Court is of the opinion that this is a case wherein two couples decided to go to Nebraska on a hunting trip; that plans were made and the reason they took the Walls car was because of the dog. The Walls car was better equipped to take care of the dog that was going to be used on the hunting trip. The Court is of the opinion that the guest statute applies to this case and this set of facts.

'The Court is of the opinion that it was not the payment of expenses such as gasoline and oil and meals by the Bedenbenders for the Walls that was the motivating cause or factor for the taking of the trip, but that the motive that...