Elliott v. Peters

• Decision Date: 04 October 1947
• Docket Number: 36934.
• Citation: 185 P.2d 139,163 Kan. 631
• Parties: ELLIOTT v. PETERS.
• Court: Kansas Supreme Court

185 P.2d 139

163 Kan. 631

ELLIOTT v. PETERS.

No. 36934.

Supreme Court of Kansas

October 4, 1947

Appeal from District Court, Harvey County; George L. Allison, Judge.

Action by J. C. Elliott against Alfred Peters for personal injuries and property damage sustained in an automobile collision. From a judgment sustaining a demurrer to a cause of action set forth in the petition, for gross negligence recklessness, and wantonness, plaintiff appeals.

HARVEY C. J., and SMITH, J., dissenting.

Syllabus by the Court.

1. Recklessness or reckless conduct when relied upon to circumvent the possible defense of contributory negligence in automobile accident cases is synonymous with wantonness. If the reckless conduct is less than wanton, it is in the nature of negligence and contributory negligece is a defense thereto.

2. 'Gross' negligence no longer has any legal consequence in so far as the defense of contributory negligence is concerned in automobile accident cases in this state. Contributory negligence is a defense to gross negligence in such cases.

3. Whether contributory negligence is a defense to wantonness does not develop from the circumstances of this case (Following Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P.2d 822.)

4. The allegations setting forth in part that the defendant was driving through an intersection, on the crest of a hill, at speed of 80 miles an hour, in the nighttime, are insufficient to establish wantonness on the part of the defendant in this case.

Vernon A. Stroberg and J. Sidney Nye, both of Newton (Kenneth G. Speir and Herbert H. Sizemore, both of Newton, on the brief), for appellant.

Byron Brainerd, of Wichita (J. G. Somers, of Newton, and Claude I. Depew, W. E. Stanley, Lawrence Weigand, William C. Hook, Lawrence E. Curfman, and William C. Kandt, all of Wichita, on the brief), for appellee.

BURCH Justice.

This appeal is from a ruling of the district court sustaining a demurrer to a second cause of action set forth in a petition in which cause the plaintiff alleged gross negligence, reckless conduct and wantonness on the part of the defendant. The action was brought to recover damages resulting from an automobile collision occurring on a public highway.

The appeal involves the construction which should be given to the plaintiff's amended petition after the plaintiff had successfully resisted the defendant's motion to make the petition more definite and certain and to strike certain allegations therefrom. Plaintiff alleges in his second cause of action by reference to his first cause of action that U.S. Highway 81 is a major and extensively-traveled thoroughfare consisting of a four-lane concrete slab, with two slabs separated by an 'island' approximately three feet in width; the island does not extend into the intersection; the highway runs north and south between the cities of Newton and Wichita, Kansas; at a point where Harvey and Sedgwick counties join, the highway is intersected or joined from the west by a county road which is of black top construction and extensively traveled; the intersection is located on a crest of a rise or hill which slopes north and south from the intersection; such fact was well known to the defendant; on December 2, 1945 at about 9:45 o'clock P.M., the plaintiff was driving his automobile; as he approached the intersection he slowed his car to a speed of 15 miles per hour and entered the intersection, turned left and proceeded across the southbound traffic portion of U.S. Highway 81 with the intent of proceeding west on the county road; as he was about to pass out of the intersection and at a time when his car was astride of the west half of the southbound traffic portion of the highway the defendant, while driving his automobile south on said highway, caused it to run into the automobile of the plaintiff, causing personal injuries and property damage to the plaintiff.

After reference to the foregoing general facts, the second cause of action in plaintiff's amended petition alleges, in substance, that the defendant was guilty of 'reckless, gross and wanton negligence or conduct' in one or more, or a combination of one or more, of the following particulars: (a) In operating the defendant's automobile at a speed of approximately 80 miles an hour when he knew, or should have known, of the existence of the extensively-traveled county road; of the probability of traffic being thereon; knowing that highway 81 was intersected by the county road near the top of a hill or rise and that his vision would be restricted by the same, and knowing he could not stop at the speed he was traveling in time to avoid colliding with a vehicle which might be in the intersection; (b) in failing to maintain a lookout commensurate with the circumstances, the type of lookout being maintained by the defendant being within his peculiar and personal knowledge; (c) in driving said automobile as aforesaid, knowing that the speed was dangerous, with four persons in the front seat thereof, which fact impaired his control of the automobile, when the defendant should have known it would be necessary for him to take prompt action to avoid hitting any object which might be in the intersection; (d) in driving the automobile in the alleged circumstances knowing that it was in a defective mechanical condition and had defective lights, which defects were peculiarly within the knowledge of the defendant; (e) in driving said automobile with utter disregard for the rights of others using the highway, when the defendant knew of all the alleged circumstances; and (f) in driving the automobile when the defendant knew that it was impossible for him to stop within the range of his vision and knowing that his vision was restricted by the hill or rise, and knowing that if any object were in the intersection, which fact the defendant knew was probable, a collision was inevitable.

The allegations in plaintiff's second cause of action are much more extensive than the summary thereof indicates but each paragraph contains a repetition of nearly all of the circumstances and in addition allegations that the defendant knew, or should have known, of the existence thereof. The foregoing, however, in substance, sets forth essential facts which the plaintiff relies upon in combination as alleging 'reckless, gross and wanton negligence or conduct.' The remainder of the petition consists of allegations pertaining to the injuries and damages sustained by the plaintiff.

The defendant's motion to make the second cause of action more definite and certain and to strike certain allegations therefrom need not be set forth in detail herein. The motion sought to require the plaintiff to allege with more particularity what means of knowledge the defendant had or should have had concerning the existence of the alleged extensively traveled intersection and whether the county road at the point of collision was a joining road or an intersecting road. The motion sought to require the plaintiff to allege the facts and circumstances which caused the defendant to have knowledge of the conditions which the plaintiff alleged were known or should have been known to the defendant. The motion contains six separate requests on the part of the defendant seeking to have the plaintiff allege the facts which gave the defendant knowledge of the various circumstances or the means of knowledge which the defendant had of the probability of a collision occurring at the intersection or junction of the two highways. In connection with the argument before the court on the motion, the plaintiff moved for leave to amend the petition by interlineations consisting of inserting the words 'peculiar and' preceding any allegation of 'personal knowledge of the defendant' wherever said allegation was found in the plaintiff's petition. Upon such motion being made by the plaintiff, the court overruled the defendant's motion to make more definite and certain in its entirety and permitted the plaintiff to amend by such interlineations. Thus, it will be seen that all efforts on the part of the defendant to have the plaintiff allege the basis upon which the defendant had peculiar personal knowledge of the alleged existing circumstances were successfully resisted by the plaintiff. The successful resistance becomes significant because wantonness involves a state of mind indicating indifference to known circumstances. There is substantial difference when wantonness is asserted between what a man actually knows and what he should have known. There is a potent element of consciousness of danger in wantonness. A man cannot realize something he does not know because he should have known it. Comprehension of the necessity for allegations indicating the mental attitude of the defendant requires a closer examination of the allegations contained in plaintiff's second cause of action. As herein set forth, the allegations referred to in the first cause of action set forth the description of the two highways; the collision occurred at night; the plaintiff turned his car to the left and proceeded across the southbound traffic portion of the highway, at a speed of 15 miles an hour, for the purpose of proceeding west on the county road; and that there was a crest of a hill at the intersection which was well known to the defendant. In other words, there is nothing specific in the allegations referred to which asserts in any manner the defendant's state of mind as he approached the point of the collision. There is also an absence of any allegation showing that the defendant was in the habit of driving on the highway where the accident occurred or that he had any other basis for personal knowledge of the existence of the alleged rise or hill or of the intersecting or joining...