Bogle v. Conway

• Decision Date: 21 January 1967
• Docket Number: No. 44622,44622
• Citation: 198 Kan. 166,422 P.2d 971
• Parties: Ruth BOGLE and Rex Bogle, Appellees, v. Donald G. CONWAY and Henry E. Fisher, Appellants.
• Court: Kansas Supreme Court

Page 971

422 P.2d 971

198 Kan. 166

Ruth BOGLE and Rex Bogle, Appellees, v. Donald G. CONWAY and Henry E. Fisher, Appellants.

No. 44622.

Supreme Court of Kansas.

Jan. 21, 1967.

Syllabus by the Court

In an action by the parents of a minor to recover damages for his wrongful death, the trial court found that the minor died as a result of injuries sustained in a two-automobile accident while a passenger in one of the vehicles; that such accident was proximately caused by the gross and wanton negligence of the two defendant drivers, one in trying to pass the other at a speed in excess of 80 m. p. h. as the automobiles were driven by the two defendants approaching the crest of a hill, and the other in driving his automobile at a speed in excess of 80 m. p. h. and failing to reduce his speed as the automobiles approached the crest of the hill in a marked no-passing zone. On appeal from an adverse judgment the record is examined and it is held: The evidence in the record is sufficient to support the findings of the trial court, and it did not err in failing to find the deceased minor guilty of gross and wanton negligence.

Harry A. Waite, Dodge City, argued the cause, and E. C. Minner, Dodge City, was with him on the brief, for appellants.

Chas E. Vance, Liberal, argued the cause, and H. Hobble, Jr., Chester A. Nordling and Gene H. Sharp, Liberal, were with him on the brief, for appellees.

SCHROEDER, Justice:

This is an action brought by the parents of a minor, Gary Bogle, to recover damages for the wrongful death of the minor. Death came to Bogle as the result of injuries he sustained in an accident while riding as a passenger in one of two automobiles approaching the crest of a hill side by side at high speed when they met another automobile approaching from the other side.

The basic question presented on appeal is whether the evidence supports the findings of the trial court.

Donald G. Conway and Henry E. Fisher (defendants-appellants) are both minors and were the drivers of the two automobiles which engaged in a drag race. The parents of Bogle were forced of necessity to prove their cause of action by the testimony of the defendants. They called the defendants to testify at the trial, and they also used their deposition testimony. Based upon their testimony the essential facts of the case may be stated as follows:

On Sunday, the 29th day of September, 1963, Gary Bogle, Donald G. Conway and Henry E. Fisher were all residents of Meade, Kansas. Shortly before 1:15 p. m. Conway was driving his Chevrolet automobile in Meade, and as he stopped for a stop light Bogle, who had been sitting in front of the snooker hall, started walking toward the Conway automobile in such a way that Conway thought Bogle wanted to say something to him. Conway turned the corner, stopped and Bogle got into the automobile with him. They met some other boys and decided to go to the football field and play touch football. Conway and Bogle then drove to a Mobil Service Station where Conway worked. They went there to use the telephone to call more boys to play football. Both boys went into the station where Conway used the telephone. While Conway was using the telephone, Fisher drove up to the station in his Pontiac automobile. Fisher alighted from his vehicle and met Conway and Bogle in the station. Fisher proposed a race. Conway declined at first, but according to the testimony of Conway, Bogle worked on him, and Conway finally agreed to race. Before they entered their automobiles, Conway asked Bogle if he wanted to go along. Bogle said he did, and got into Conway's automobile. Conway put some gasoline in his automobile and then followed Fisher to a point on the highway about a mile north of Meade where they both stopped. Conway took the left lane and Fisher the right. The race started from a standing start, but Conway's automobile accelerated faster than Fisher's. When Conway and Bogle were sufficiently ahead of Fisher, Conway pulled his automobile into the right-hand lane ahead of Fisher. They proceeded north on the highway at a high rate of speed, Fisher admitting that they had reached a speed of 120 m. p. h., according to his speedometer, after which they slowed down. Conway also admitted a speed of 120 m. p. h. and decided he had gone far enough. He then let off of the gas pedal and slowed down.

Fisher then pulled into the left lane and started to pass Conway on the incline of a hill. At that time the automobiles were side by side and traveling at a speed of 80 or 90 m. p. h. Another automobile approached from the north coming up the other side of the hill. Fisher upon seeing the approaching vehicle attempted to slow down and pull behind Conway and Bogle. As Fisher tried to pull behind the Conway Chevrolet, the front bumper of his Pontiac locked with the rear bumper of the Chevrolet, throwing the Chevrolet out of control and off the highway. Bogle was thrown from the Chevrolet sustaining injuries which resulted in his death the following Tuesday.

Upon the evidence presented in the case the trial court made written findings as follows:

'1. The Court finds that Gary Bogle died on October 1, 1963, as the result of injuries sustained in a two-car automobile accident which occurred in Meade County on September 29, 1963, while a passenger in the vehicle driven by defendant, Donald G. Conway.

'2. Such accident was proximately caused by the gross and wanton negligence of the defendant, Fisher, in trying to pass the defendant, Conway, at a speed in excess of 80 miles an hour as the cars driven by the two defendants approached the crest of a hill, and the gross and wanton negligence of the defendant, Conway, in driving his automobile at a speed in excess of 80 miles an hour and failing to reduce his speed as the cars approached the crest of the hill in a marked no-passing zone when both drivers knew that an accident would undoubtedly ensue if there was a car approaching on the other side of the hill and continued on their own way in complete disregard of the consequences.

'3. The plaintiff, Ruth Bogle, now Ruth Weaver, was the mother and had custody of Gary Bogle, and during the lifetime of Gary Bogle necessarily incurred expense for medical and hospital treatment of the injuries that he received in such accident in the amount of $493.99.

'4. Plaintiffs were the parents of the decedent, Gary Bogle, and plaintiff, Ruth Bogle, suffered damage by reason of his wrongful death in an amount in excess of $25,000.00.'

The journal entry discloses that both parties proceeded to trial without a jury, no demand for a jury having been filed. Accordingly, judgment was entered in favor of the plaintiffs for the sum of $25,000 and costs, and Ruth Bogle, the mother of the deceased minor, was given judgment against the defendants for the sum of $493.99. The defendants' motion to alter the judgment and their motion for a new trial, after argument to the court, were both overruled.

The appellants contend the trial court erred in refusing to find that Bogle was an active and willing participant in an automobile race which caused his death. They argue the fact of the race and the fact of Bogle's desire to participate are established by the plaintiffs' evidence, and that there is nothing in any of the evidence to the contrary.

The appellants argue whether voluntary participation in racing on a public highway be called 'assumption of risk' or 'voluntary assumption of risk' or 'consent to the injury' or any other name, the fact remains that the willing participant is guilty of the same conduct which he seeks to use as a basis for imposing legal liability on the other participants, and if the conduct of the others in the race may be called wanton, so may the conduct of the guest racer.

It must be conceded that contributory negligence is not a defense to a defendant's willful or wanton conduct, but willful or wanton conduct of a plaintiff is a defense to the defendant's wantonness. (Kniffen v. Hercules Powder Co., 164 Kan. 196, 188 P.2d 980, Syl. 4.)

This court has recently held that assumption of risk is no defense to an action arising under the guest statute. In Perry v. Schmitt, 184 Kan. 758, 339 P.2d 36, the court said:

'* * * The defense of assumption of risk is generally confined to master and servant situations. We have never applied that doctrine as a defense to an action arising under the guest statute and we are not disposed to do so now. * * *' (p. 762, 339 P.2d p. 39.)

In that case the plaintiff, a minor, bought a half pint bottle of whiskey, from which both plaintiff and defendant had two drinks on the way to Liberal. There they met some friends and drank 'two or three beers.' They then drove around town until about 11:00 p. m. when they started back to Hugoton. The plaintiff went to sleep after they left Liberal and the next thing he remembered was waking up in the Amarillo Air Force Base Hospital. The jury found that the liquor and beer consumed by the defendant...