Carruth v. Cunningham, 46058

• Decision Date: 16 July 1971
• Docket Number: No. 46058,46058
• Citation: 486 P.2d 1401,207 Kan. 781
• Parties: Robert W. CARRUTH, a minor by his father and next friend Arthur J. Carruth, III, Appellant, v. James C. CUNNINGHAM, as father and next friend of James R. Cunningham, Appellee.
• Court: Kansas Supreme Court

Page 1401

486 P.2d 1401

207 Kan. 781

Robert W. CARRUTH, a minor by his father and next friend Arthur J. Carruth, III, Appellant, v. James C. CUNNINGHAM, as father and next friend of James R.

Cunningham, Appellee.

No. 46058.

Supreme Court of Kansas.

July 16, 1971.

Syllabus by the Court

1. Whether a person is a 'guest' within the meaning of K.S.A. 8-122b depends upon the facts and circumstances of the particular case.

2. 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; whether the 'payment,' 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. (Following Bedenbender v. Walls, 177 Kan. 531, Syl. 4, 280 P.2d 630.)

3. When the purpose of an automobile excursion is purely for social purposes, mutual pleasure and the enjoyment of the parties, an incidental payment for gasoline by the person being transported does not constitute 'payment for such transportation' within the meaning of the statute.

4. In the absence of evidence of gross and wanton negligence it is held, under the circumstances outlined in syllabus 3 summary judgment was properly entered in favor of the defendant driver by reason of the guest statute (K.S.A. 8-122b).

Charles Rooney, Sr., Topeka, argued the cause, and Charles Rooney, Jr., Topeka, was with him on the brief for appellant.

Herbert A. Marshall, of Marshall, Hawks, McKinney & Hundley, Topeka, argued the cause and was on the brief for appellee.

FROMME, Justice.

Plaintiff appeals in an action for personal injuries received as a passenger in a one car automobile accident. The appeal is from a summary judgment entered in favor of the defendant driver. The trial court considered the contents of the court file, the depositions of the parties, the arguments of counsel and the briefs filed. It concluded as a matter of law that the plaintiff was a guest of the defendant within the meaning of K.S.A. 8-122b, that there was no evidence to support a claim of gross and wanton negligence against the defendant and that no genuine issue as to any material fact remained.

The plaintiff passenger and the defendant driver were the only persons in the car at the time the accident occurred. Both suffered serious injuries and neither could recall any details of the accident because of memory loss. There were no eyewitnesses available. It is understandable that no evidence could be discovered to support a charge of gross and wanton negligence. Counsel for plaintiff, as a result, has conceded the lack of any evidence to support the charge of gross and wanton negligence and has quite properly abandoned the same on appeal.

K.S.A. 8-122b 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.' (Emphasis added.)

One general question remains for decision in this appeal. Was the plaintiff a guest within the meaning of the statute? There is no dispute in the depositions as to the events leading up to the accident. If plaintiff was a guest of the defendant the trial court was correct in entering a summary judgment in favor of defendant.

We turn now to the facts.

Plaintiff Carruth and defendant Cunningham were schooolmates in high school and had just completed their junior year. Cunningham owned an automobile. Carruth owned none. They had previously been together on social occasions and had driven around in Cunningham's car. On the night in question Carruth and a friend by the name of Danny Buxton were together at Carruth's home. They wanted to go across town to a 'get together' at the home of another friend by the name of T. C. Sumpter. Carruth called Cunningham on the phone and asked him if he wanted to go to a party at T. C. Sumpter's house. Cunningham did and he stopped by and picked up Carruth and Buxton. After they were in the car and on their way, Cunningham said he was low on gas and he wondered if Carruth and Buxton could buy some gas for the car. They did so. Each put up twenty-five cents and the gas was purchased.

After 'getting together' at T. C. Sumpter's house they decided to ride around. The four young men rode around for a while, stopping for something to eat at McDonald's and for cigarettes at Tilton's Market. Later they returned to the Sumpter home. Sometime later Cunningham and Carruth decided to leave and look for girls. They headed for the Collins Drive-In on West 10th (6th) Street.

Because of memory loss occurring from their head injuries neight young man could remember any further events of the evening. They were both seriously injured and the car demolished. The car hit a concrete...