Dikeman's Estate, In re, 39667

• Decision Date: 11 June 1955
• Docket Number: No. 39667,39667
• Citation: 284 P.2d 622,178 Kan. 188
• Parties: In the Matter of the ESTATE of Randal DIKEMAN, Deceased. Eisie MARDIS, Appellant, v. Wanda Lorraine KONOLD and Shirley Ann Lawton, Executrices of the Estate of Randal Dikeman, Deceased, Appellees.
• Court: Kansas Supreme Court

Page 622

284 P.2d 622

178 Kan. 188

In the Matter of the ESTATE of Randal DIKEMAN, Deceased.

Eisie MARDIS, Appellant, v. Wanda Lorraine KONOLD and Shirley Ann Lawton, Executrices of

the Estate of Randal Dikeman, Deceased, Appellees.

No. 39667.

Supreme Court of Kansas.

June 11, 1955.

Rehearing Denied July 6, 1955.

Syllabus by the Court.

1. The guest statute of this state, G.S.1949, 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.

2. Rules governing the construction of petitions before and after attacks by motions to make more definite and certain stated, discussed and applied.

3. The petition in an action to recover damages for personal injuries sustained while riding in an automobile alleges in substance that during the month of April, 1953, Randal Dikeman, the plaintiff, and other persons therein named were members of the Order of the Eastern Star, a fraternal organization; that as members of such organization they had been chosen as delegates and representatives of their local Chapter to attend the Grand Chapter meeting of such Order at Topeka; that in contemplation of the trip plaintiff and Randal Dikeman orally agreed she would pay him a reasonable sum for transporting her to Topeka and return to Pratt, Kansas; that pursuant to such arrangement Dikeman transported plaintiff, along with others, to Topeka, the purpose of the trip being to attend the Grand Chapter meeting of the Order to be held in that city; that there Dikeman, plaintiff, and others accompanying on the trip discussed what each would pay him for their transportation from Pratt to Topeka and return and decided the amount thereof should be reasonable and finally fixed upon completion of the return trip; that thereafter all parties left Topeka in Dikeman's automobile for the return to Pratt but such trip was not completed due to the fact the auomobile in which all parties were riding was involved in an accident with a Missouri Pacific freight train at a railroad crossing at Turon, resulting in the death of Dikeman and his wife and serious injuries to the plaintiff. Following Bedenbender v. Walls, 177 Kan. 531, 280 P.2d 630, it is held that under the facts above stated and others alleged in the petition, (1) plaintiff was a guest in the Dikeman automobile at the time of the accident; (2) the guest statute, G.S.1949, 8-122b, has application; and (3) the trial court did not err in sustaining a demurrer to the petition, which states a cause of action for ordinary negligence only.

Payne H. Ratner, Wichita, and Louise Mattox, Payne H. Ratner, Jr., Russell Cranmer, Dale B. Stinson, Jr., Carroll F. Pope, Keith Eales, Cliff W. Ratner, and William L. Fry, Wichita, and Max C. Bucklin, Pratt, on the brief, for appellant.

Eldon L. Meigs, Pratt, and Paul R. Wunsch, Kingman, and Richard Barrett and George Barrett, Pratt, and Charles H. Stewart, Kingman, on the brief, for appellees.

PARKER, Justice.

This action originated with the filing of a petition, in the nature of a claim, in the probate court to recover damages from the estate of a decedent for personal injuries sustained by the claimant while riding as a passenger in the decedent's automobile. Pursuant to a request included in that pleading the cause, as authorized by statute, G.S.1949, 59-2402, was transferred to the district court where all subsequent proceedings were had.

The petition contains two causes of action. The first seeks to recover damages for plaintiff's own personal injuries and the second, based on the allegations of the first, is for the benefit of her husband, as the statute permits, G.S.1949, 23-205, for loss sustained by reason of her inability to perform services in the household and in the discharge of her domestic duties as the result of the involved accident. The first cause of action fully discloses the facts, as well as the theory, on which plaintiff bases her right of recovery and portions thereof, particularly all allegations throwing light on whether the guest statute, G.S.1949, 8-122b, has application, should be quoted at length.

Limited as above indicated and omitting formal averments, allegations of no consequence to the appellate issue including those of the second cause of action, assertions as to the nature and extent of injuries sustained, and the prayer, the petition reads:

'I.

'Petitioner, Randal Dikeman, Deceased, Mrs. Randal Dikeman, Deceased, Mrs. Lanice Hoffman and Mrs. Ernest Munch were at all times material herein, members in good standing of the Sarah E. Stewart, Chapter 150 of the Order of the Eastern Star, Pratt, Kansas. That petitioner was at the time of the collision, resulting in her injuries, hereinafter alleged, Worthy Matron of said Sarah E. Stewart, Chapter 150, of the Order of the Eastern Star, and said Randal Dikeman, Deceased, was at the time of the said collision a past Worthy Patron of said Chapter and Mrs. Randal Dikeman, Deceased, was at the time of said collision, a past Worthy Matron of said Chapter. That said Randal Dikeman, Deceased, Mrs. Randal Dikeman, Deceased, and petitioner were delegates to the Grand Chapter of the Order of the Eastern Star for the State of Kansas at all times material herein.

'II.

'That a Grand Chapter meeting of said Order was to be held in Topeka, Kansas, between the 21st day of April, 1953, and the 23rd of April, 1953. That the Grand Chapter of the Order of the Eastern Star for the State of Kansas is composed of delegates from the various local chapters throughout said State and at its Grand Chapter meetings conducts business sessions at which rules, orders, regulations, by-laws and directives are discussed and adopted which have a direct and proximate bearing upon the government of said local chapters throughout said State. That the delegates from the various local chapters have a vote at said business sessions and can and do influence the adoption or rejection of any and all proposals submitted, including those affecting the regulation and government of said local chapters throughout said State.

'III.

'On or about the 21st day of April, 1953, Randal Dikeman, Deceased, Mrs. Randal Dikeman, Deceased, and petitioner left the City of Pratt, Kansas, for Topeka, Kansas, in a 1953 Lincoln Sedan owned and driven by Randal Dikeman, Deceased. That the purpose of said trip was to attend the April, 1953, Grand Chapter meetings of the Order of the Eastern Star for the State of Kansas, as delegates and representatives of the Sarah E. Stewart, Chapter 150 of said order. That it was the purpose and intent of said delegates and of said Sarah E. Stewart Chapter 150, of the Order of the Eastern Star, that said delegates should represent the interests of said local chapter at the business sessions of said Grand Chapter meetings and were to vote accordingly for the adoption or rejection of any and all proposals submitted.

'IV.

'The Grand Chapter of the Order of the Eastern Star for the State of Kansas authorized the payment of petitioner's transportation costs to and from the April, 1953, Grand Chapter meetings at Topeka, Kansas, and the deceased, Randal Dikeman, agreed to accept payment for the transportation of this petitioner.

'V.

'That on said trip to the April, 1953, Grand Chapter meeting Randal Dikeman, Deceased, Mrs. Randal Dikeman, Deceased, and this petitioner were accompanied by Mrs. Lanice Hoffman and Mrs. Ernest Munch.

'VI.

'Petitioner, Randal Dikeman, Deceased, and Mrs. Randal Dikeman, Deceased, did attend said April, 1953, Grand Chapter meeting of the Order of the Eastern Star at Topeka, Kansas, and did represent the interests of said Sarah E. Stewart Chapter 150, of the Order of the Eastern Star, at the business sessions thereof.

'VII.

'On the 24th day of April, 1953, while returning from said Grand Chapter meeting and at a time when this petitioner was being transported as a passenger in said 1953 Lincoln Sedan, which was then owned by and was being driven by said Randal Dikeman, Deceased, at approximately 12:20 p. m., said Randal Dikeman, Deceased, while driving said Lincoln in a westerly direction on State Highway K-61, in the County of Reno, approached the town of Turon, Kansas. That it was lightly raining at the time, the roadway was straight and level and of blacktop material. As said Randal Dikeman, Deceased, entered the town of Turon, he never reduced his speed but continued in a westwardly direction on said highway toward the intersection of same with the tracks of the Missouri Pacific Railroad Company, which crossed said highway in a generally north and south direction, at the western limits of said town. That said intersection was marked by a railroad crossing sign approximately 450 feet east of said intersection and the view of said intersection was clear and observable to the deceased Randal Dikeman for approximately said distance.

'VIII.

'That a Missouri Pacific diesel freight train proceeding in a southerly direction, ringing its bell and blowing its whistle, entered said intersection prior to and at a time when it was clearly observable to said deceased Randal Dikeman. Said Randal Dikeman failed to decrease his speed although said train was clearly observable to him and said train's bell and whistle were clearly audible to him, and continued in a westwardly direction at a high and excessive rate of speed within the city limits of Turon and drove his vehicle directly into the left side of said diesel engine without ever applying his brakes. As a direct and proximate result of the carelessness and negligence of said Randal Dikeman, Deceased, Elsie Mardis, petitioner herein suffered the injuries and damage hereinafter stated.'

The defendants, who are...