Elliott v. Behner

• Citation: 146 Kan. 827,73 P.2d 1116
• Decision Date: 11 December 1937
• Docket Number: 33516.
• Parties: ELLIOTT v. BEHNER.
• Court: Kansas Supreme Court

73 P.2d 1116

146 Kan. 827

ELLIOTT v. BEHNER.

No. 33516.

Supreme Court of Kansas

December 11, 1937

Syllabus by the Court.

Automobile guest statute implies right of owner or operator of automobile to choose his passengers (Gen.St.1935, 8-122b).

Where driver of automobile receives compensation, a passenger is not a "guest" under guest statute (Gen.St.1935 8-122b).

Where one member of county bridge crew was in charge of truck used to transport crew to and from work, and he received no extra pay for driving truck, except his transportation to and from his home, such transportation was "material compensation" to truck driver, and hence he could not set up, as defense to action against him for death of member of crew from his negligent driving, that member was a "guest" within meaning of guest statute (Gen.St.1935, 8-122b).

Under automobile guest statute, passenger is not a "guest" though he pays no fare, where motorist receives direct benefit from third person (Gen.St.1935 8-122b).

Where death of member of county bridge crew resulted from negligent driving of truck by another member of crew, doctrine of imputed negligence on ground that crew was engaged in joint enterprise would not preclude recovery from driver, since doctrine of imputed negligence has no application in suit by one member of joint enterprise against another member.

In action against driver of truck for death of passenger, who was not guest, when truck struck piece of lumber protruding from a truck parked at side of road, evidence sustained finding that driver was negligent.

1. In an action for damages for injuries sustained in a collision of motor vehicles, the record and special findings of the jury considered, and as no error is found, the judgment in favor of the plaintiff is affirmed.

2. Where the occupants of a truck consisted of a number of men working for a county as a bridge crew, and one member of the crew was driving, and the driver had no right to choose or exclude any member of the crew as a passenger, held, the guest statute did not apply, and the driver was liable for injuries resulting from his failure to exercise due care under the circumstances.

3. Under a statute denying recovery for injuries sustained while one is being transported as a guest without payment of fare held, that where the driver receives a direct benefit from a third party, the transportation is not gratuitous and there is no guest relationship.

4. Assuming that the driver and other occupants of a truck are engaged in a joint enterprise, it would not preclude one of them from recovering damages from the driver for injuries sustained through the latter's negligent driving. The doctrine of imputed negligence has no application in such action.

Appeal from District Court, Montgomery County; Joseph W. Holdren Judge.

Action by Mabel Elliott against Ed Behner. From a judgment in favor of plaintiff, the defendant appeals.

Judgment affirmed.

J. A. Brady, of Cherryvale, for appellant.

W. N. Banks, O. L. O'Brien, and W. L. McVey, all of Independence, for appellee.

ALLEN Justice.

This was an action brought by Mabel Elliott against Ed Behner for recovery of damages because of the negligence of defendant resulting in the death of Albert Elliott, husband of the plaintiff. The plaintiff recovered judgment, and defendant appeals.

Plaintiff's husband and the defendant were working for Montgomery county on bridge work. The bridge crew was working under the direction of the county engineer. The county transported the men from the county garage in Independence, to and from their work, and had done so for a number of years. The defendant Ed Behner was the driver in charge of the truck used in the transportation of the bridge crew at the time of the accident. He had been in charge of the truck as driver for several years. Defendant lived in Cherryvale, Kan., and received no extra pay for driving the truck, except that in this way he received transportation back and forth from his home.

On the day of the accident the crew had been working on a bridge north of Coffeyville. They were on the return trip to Independence when the collision occurred, which resulted in the death of Elliott. The truck in which the men were riding at the time was an ordinary Ford truck. The defendant Behner was driving and the bridge foreman was riding with him in the cabin. The rear part of the truck in which the crew was riding was wider than the cabin. The defendant Behner testified that: "The compartment the men were riding in was a little wider than the cabin I would judge fourteen inches. There was a seat on each side and one cross ways with men's backs just behind the cab, there were curtains on the sides of the compartment." The curtains prevented the men from seeing outside except through the back end. Elliott was seated in the corner of the truck facing the rear.

The truck was traveling in a westerly direction on U.S. Highway No. 160. This highway after running due west makes a sweeping curve to the south. Just west of the center of this curve a byroad runs to the west. At the point of intersection of this byroad with the main highway, a truck owned by one Lawrence was parked, with a jack under the left rear wheel. Lawrence testified that he had a load of mixed lumber on his truck--about a ton of lumber that he had taken from a house that he had torn down. He stated that "the wheels of his truck were clear of the paved part, possibly some of the lumber might have extended over the highway." Other witnesses stated the Lawrence truck was parked at an angle and that the lumber extended back over the pavement.

The collision occurred about 5:00 o'clock p. m. It was daylight--a clear day, and the sun was shining. There was evidence that there was a red flag on the back end of the Lawrence truck prior to the accident. The pavement at the point of collision was twenty feet wide, and the shoulders six feet wide. The defendant Behner testified:

"We were coming in from work about our usual time the day of the accident at our usual rate of speed. The boss Mr. Guilkey was riding with me and we made some remark about the sun shining and I said that I could see in front of the truck and down the road, I saw the truck in front was at the side of the pavement when I was one hundred yards from it. After we approached nearer I saw the truck was stopped, before that I thought it was moving, the next thing I saw was just at the time my boss hollered and I swerved to clear the compartment but could not get it clear enough but I went as far as possible. There was some lumber sticking out. I was possibly thirty feet from the lumber when I saw the pieces sticking out over the paved road. It stuck about seven feet on the pavement from the end of the truck, there was no signals or any kind of flagging on the lumber, I am positive there was just one piece of the lumber that stuck out of the truck, I was able to miss all of the rest. I had got the front wheels of the truck I was driving across the center line across to the left when we struck the piece of board and had I gotten over on the

...