Cohee v. Hutson
| Decision Date | 09 May 1936 |
| Docket Number | 32656. |
| Citation | 57 P.2d 35,143 Kan. 784 |
| Parties | COHEE v. HUTSON. |
| Court | Kansas Supreme Court |
As Amended on Denial of Rehearing June 15, 1936.
As Amended on Denial of Rehearing June 15, 1936.
Syllabus by the Court.
In an action for damages for injuries sustained when defendant's truck capsized in a roadside ditch while plaintiff was putting rocks under the front wheel, and in which court and counsel agreed that the action was governed by the guest-passenger statute, (R.S.Supp.1933, 8--122b), the record examined and held that neither on the jury's special findings of fact nor on the evidence adduced in their support did defendant's act constitute wantonness so as to subject him to liability under the statute.
Appeal from District Court, Wilson County; J. T. Cooper, Judge.
Action by Charles Louis Cohee against E. W. Hutson. Judgment for plaintiff, and defendant appeals.
Le Roy Bradfield, of Neodesha, and Stanley Garrity, of Kansas City Mo., for appellant.
W. H Edmundson, of Fredonia, and Jerome Harman and Charles Stephens, both of Columbus, for appellee.
This was an action for damages for injuries sustained by plaintiff when defendant's truck capsized in the roadside ditch of a public highway.
The controlling facts were mainly these: Defendant was the owner of a farm truck equipped with a stock rack for hauling cattle. On November 3, 1932, he left his home near Neodesha to attend a cattle sale in Parsons. Plaintiff accompanied him as his guest. Defendant bought two cattle at the sale, loaded them on the truck, and about 6 o'clock p. m. the two men started for home.
About three miles from Neodesha they turned into a northbound road which at first had a slight raise and then went down a long gradual decline. The photographic exhibits attached to the abstract indicate that it was a typical country road. There was a ditch from one to four and one half feet deep on the east side of the road.
When the truck had passed the crown of the raise and was beginning to descend the long northward slope, an automobile with very bright lights came from the north at high speed. Defendant's truck lights were comparatively dim. To avoid the likelihood of a collision, defendant veered his truck northeastward, somewhat close to the roadside ditch, put on his brakes and stopped. When the automobile had passed defendant discovered that the right front wheel of his truck was so close to the ditch that if he should release his brake and attempt to back his truck, it would probably go forward into the ditch of its own momentum. So he said to plaintiff, "Get out and get a rock to chock it so I can release my brake to back out."
Plaintiff did as requested. It was dark, but he found a rock about 6 or 8 inches long, 4 inches wide, and 4 inches thick. He placed this rock under the right front wheel. Plaintiff testified:
Plaintiff was held fast between the truck and the ditch embankment for quite a while, but eventually a number of men came from a meeting in a schoolhouse half a mile away. They released plaintiff and he was taken to a hospital, where he was confined for several months. There was no issue raised as to the extent or gravity of his injuries.
In his action for damages plaintiff charged defendant with gross and wanton negligence. Defendant joined issues of fact. Counsel for both parties, and likewise the trial court, were agreed that the "guest statute" controlled, and the trial court so instructed the jury. A general verdict for $8,000 in favor of plaintiff was returned by the jury, which also answered certain special questions, viz.:
"1. Was the defendant guilty of gross and wanton negligence? A. Yes.
2. If you answer Question No. 1 in the affirmative, then state specifically of what this gross and wanton negligence consisted? A. Attempting to shift gears without warning to Mr. Cohee. * * *
7. How far did the truck move northward with the two right wheels in the ditch along the east side of the road? A. About 10 feet.
8. Did the defendant release the brakes and put the engine in reverse in an attempt to back up after Mr. Cohee left the cab of the truck and before the right front wheel came to rest on his body? A. Yes. * * *
A.
Q. Did plaintiff place a rock under the front wheel of the truck soon after he got out of the truck? A. Yes.
B.
Q. Was plaintiff turning with a second rock to place same under the front wheel of the truck just before the front wheel of the truck went against him? A. Yes.
C.
Q. If you answer the above question 'Yes,' then state whether defendant, E. W. Hutson, knew or had good reasons for believing that plaintiff was making an effort to place a second rock under the front wheel of the truck. A. Good reasons to know.
D.
Q. If you find that the defendant changed the gear just before the truck went into the ditch, then state whether defendant gave plaintiff any warning before changing the mechanism of his truck? A. No warning.
E.
Q. If you answer 'D' that defendant did change the mechanism of his truck, at said time, without previous notice to plaintiff, then state whether such change, without such notice, constituted reckless indifference for the rights of plaintiff? A. Yes."
Defendant filed all the usual motions. These were overruled; judgment was entered on the verdict; and defendant brings the case here for review.
The principal error assigned centers about the question whether the act of defendant in shifting gears without warning to plaintiff constituted gross and wanton negligence. Defendant maintains that it does not; plaintiff maintains the contrary.
It ought to be clear that the use of denunciatory adjectives in a pleading, an argument, or in a jury's special verdict, is not of controlling importance. The jury's conception of those adjectives, "gross and wanton," is reflected in their second special finding--that it was an act of gross and wanton negligence for defendant to shift the gears of his truck, without first warning the plaintiff.
To curb a practice which was bringing the administration of law and justice into disrepute--that of passenger-guests suing their chauffeur-hosts for damages sustained in motor car accidents--our Legislature, in 1931, enacted the following statute: "That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payments 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...
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...Edwards, 140 Kan. 325; Aduddell v. Brighton, 141 Kan. 617; Murrell v. Janders, 141 Kan. 906; Anderson v. Anderson, 142 Kan. 463; Cohee v. Hutson, 143 Kan. 784; Stevers v. Walker, 125 S.W.2d 920; Evans v. Central R. Co., 233 S.W. 397. Bradley, C. Dalton and Van Osdol, CC., concur. OPINION BR......
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