Donelan v. Wright

• Decision Date: 09 July 1938
• Docket Number: 33881.
• Citation: 148 Kan. 287,81 P.2d 50
• Parties: DONELAN v. WRIGHT. [*]
• Court: Kansas Supreme Court

81 P.2d 50

148 Kan. 287

DONELAN v. WRIGHT. ^[*]

No. 33881.

Supreme Court of Kansas

July 9, 1938

Syllabus by the Court.

To constitute "wantonness" within automobile guest statute, so as to permit recovery by guest, conduct must be such as to evince a willingness that harm might result therefrom or as to evince a reckless unconcern that guest might be injured. Gen.St. 1935, 8-122b.

"Wantonness" within automobile guest statute means conduct denoting conscious or intentional misconduct from which injury to some one is likely to result, and with a reckless disregard of such consequences.

Evidence that host drove automobile down right-hand side of road without lights on a night when he could see ahead from 150 to 200 feet at rate of 45 miles per hour did not show such conduct as amounted to "wantonness" or to "gross and wanton negligence" within automobile guest statute, so as to entitle guest to recover from host for injuries sustained when automobile collided with another automobile. Gen.St.1935, 8-122b.

A guest in automobile which was being driven at night on a highway without lights at rate of 45 miles per hour when driver could see ahead from 150 to 200 feet, who did not protest to driver for more than a mile before collision about manner in which automobile was being driven, and who at no time requested opportunity to leave the automobile, was guilty of contributory negligence preventing recovery for injuries sustained in collision. Gen.St.1935, 8-122b.

1. In an action by a guest against his host for damages growing out of an automobile collision, the answers to special questions are examined and it is held that the answers compel a conclusion that defendant was not guilty of gross and wanton negligence.

2. In an action by a guest against his host for damages incurred in a collision between two automobiles, the record and answers to special questions are examined, and it is held that where a guest rides with his host, who is driving at night on a highway without lights, and does not protest to the driver for more than a mile about the manner in which the car is being driven, he is guilty of contributory negligence and cannot recover.

Appeal from District Court, Saline County; Edgar C. Bennett, judge pro tem.

Action by James L. Donelan against Earl Wright to recover for injuries sustained when an automobile in which plaintiff was riding as a guest and which was being driven by defendant collided with another automobile on a highway. From a judgment for defendant, plaintiff appeals.

William S. Norris, Wint Smith, and Homer B. Jenkins, all of Salina and James V. Humphrey and Arthur S. Humphrey, both of Junction City, for appellant.

C. W Burch, B. I. Litowich, LaRue Royce, L. E. Clevenger, E. S Hampton, and R. E. Haggart, all of Salina, and Charles L Hunt and Frank C. Baldwin, both of Concordia, for appellee.

THIELE Justice.

This was an action by a guest against his host for damages growing out of an automobile collision. Judgment was for defendant upon the answers to special questions. Plaintiff appeals.

The collision occurred in the early morning of November 26, 1936. Some young people, including the plaintiff and defendant, had spent the evening at a place referred to in the record as the "Club Lido." This club is located a short distance off of highway 40 and a few miles east of Salina. The plaintiff had gone there in his own automobile with two young men friends. Defendant had gone there in a Packard car owned by his grandmother. He was accompanied by a young lady to whom he was engaged to be married, and another young man. When these young people were ready to start home a short time after midnight it was discovered that the door of the car in which plaintiff came to the club was locked in such a manner that his keys would not unlock it. After some conversation one of the young men who had come to the party with plaintiff drove to Salina after a tool with which to unlock the car. After a few minutes defendant invited plaintiff to ride home with him in his car. Plaintiff accepted this invitation. Defendant sat in the front seat and drove the car. His fiancee sat by him in the front seat. Three young men, including plaintiff, sat in the back seat. Defendant drove the car in a normal manner and with the lights on from where it was parked, 200 or 300 feet off the highway, to highway 40. When he reached the highway he turned west toward Salina and turned off his headlights. He drove at a rate of from 40 to 45 miles per hour.

The outcome of this case depends on what was said and done there by all the persons in the car and since these facts were settled by the jury in answers to special questions they will be discussed later in this opinion.

The town of Solomon is located between the club and Salina. As the car approached Solomon the party met a truck coming from the west. Just behind this was a car coming from the west. This car pulled out into the traffic lane, in which defendant was driving, to pass the truck. Defendant saw the car coming and turned on his lights, swerved to the right, and the car coming from the west pulled back behind the truck so that a collision was averted. This incident was noted by defendant and all his guests. After it occurred defendant again turned off his lights and the car driven by defendant passed through Solomon. About a mile west of Solomon the car driven by defendant collided with a car being driven from the west. Two young men in that car were killed. Defendant and all his guests were injured.

This action was brought by one of the guests.

The petition charged three acts of negligence against defendant--absence of lights --failing to keep a proper lookout--and driving on the wrong side of the road.

The answer was a general denial, and that plaintiff was guilty of contributory negligence.

The jury found that there was absence of lights and want of proper lookout, but found that defendant was on his own side of the road when the collision occurred.

At the close of the evidence for plaintiff, defendant demurred to it. This demurrer was overruled. The case was submitted to a jury. This jury answered 46 special questions and returned a general verdict for plaintiff. The defendant filed his motion to set aside certain of the answers to special questions, for a new trial, and for judgment on the answers notwithstanding the general verdict.

The court sustained the motion of defendant for judgment on the answers to special questions and denied the motion to set aside answers except where they were inconsistent with the order for judgment. The motion for a new trial was withdrawn.

Both parties state here that the two questions in the case are:

Was the conduct of defendant such as to make him guilty of gross and wanton negligence? See G.S.1935, 8-122b, and was the plaintiff guilty of contributory negligence so as to bar his right to recover?

The plaintiff refers to the answers of the jury to questions 17 and 19. They are as follows:

"17. Do you find the defendant was guilty of gross and wanton negligence as defined in the instructions of the court, in driving of the car on this occasion? A. Yes."

"19. If you find the defendant was guilty of gross and wanton negligence, state fully the acts constituting such gross and wanton negligence. A. Driving without proper lights and disregarding plea of Margaret to turn lights on."

Plaintiff argues that the question of whether the defendant was guilty of gross and wanton negligence was for the jury, and that the above answers settle the issue in favor of the plaintiff. The trouble with that argument is that the answer to question No. 17 must be considered in connection with the answer to question No. 19 and to No. 24 where the jury found that the occupants of the car in which plaintiff and defendant were riding could see ahead of the car from 150 to 600 feet, also that part of the answer to question No. 41 where the jury found that defendant was not driving on the left-hand side of the road at the time of the collision. When we so consider these answers we find a story about as follows: Defendant drove his car down the right-hand side of the road without lights on a night when he could see ahead from 150 to 600 feet. The rate of speed was not asked the jury but since there was testimony that it was 45 miles an hour we will take that figure. Our question is then Did such conduct amount to wantonness or to gross and wanton negligence under the provisions of G.S.1935, 8-122b?

This court first considered the statute in Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573. In that case this court said: "Of those matters which give rise to a civil action for damages, when an injury results therefrom, we recognize in our law negligence, meaning by that the lack of due care. We also have willful injury, as where one willfully strikes another, or willfully destroys property of another, or intentionally does any act with the purpose and intent of causing such injury. Among the activities of individuals are acts or omissions which give rise to civil actions for damages where injuries result therefrom which are subject to more severe censure than negligence and yet which are something less than willful injury. The law applies to such acts the general term of wantonness." (Page 390, 26 P.2d page 575.)

Stout v. Gallemore, supra, was discussed in Sayre v Malcom, 139 Kan. 378, 31 P.2d 8. There this court said: "In Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573, it was held the statute above quoted relieves the operator of an automobile from liability to his guest resulting from negligence, as that term is distinguished from wantonness. Cases are there cited distinguishing wantonness, as the term was used, from negligence, and...