Freeman v. Jenkins, 47698
| Decision Date | 08 November 1975 |
| Docket Number | No. 47698,47698 |
| Parties | A. J. FREEMAN et al., Appellants, v. Ruth JENKINS, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The rule of retroactive effect announced in Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262, for the decision in Henry v. Bauder, 213 Kan. 751, 518 P.2d 362, declaring the Kansas Guest Statute unconstitutional is considered and applied.
2. In an action to recover damages for wrongful deaths and for injuries received in an automobile collision, the record is examined and it is held: (1) The guest statute (K.S.A. 8-122b) applies; (2) the district court did not err in ruling that appellants were guests in appellee's automobile at the time of the collision, and (3) the district court did not err in ruling appellee's actions did not constitute gross and wanton negligence and in directing a verdict in favor of appellee.
Hylton Harman, Kansas City, argued the cause, and Glenn E. McCann, Kansas City, Mo., was with him on the brief for appellants.
John J. Jurcyk, Jr., McAnany, Van Cleave & Phillips, Kansas City, argued the cause and was on the brief for appellee.
This action sought to recover damages for wrongful deaths and personal injuries resulting from an automobile collision.
On the morning of June 12, 1969, the defendant-appellee, Ruth Jenkins, was driving to the home of Dr. and Mrs. Bingham, who reside in the vicinity of 72nd Street and State Avenue, Kansas City, Kansas. She was accompanied by Nellie Foley, Bertha Charles, Bessie Freeman and Mabelle McBroom. All of the occupants of the vehicle were members of Sunflower Chapter No. 2 of the American War Mothers.
The American War Mothers had scheduled a picnic at the home of Dr. and Mrs. Bingham on June 12. Mrs. Charles, Mrs. Foley and Mrs. Freeman met the defendant Ruth Jenkins at the church for the purpose of riding with her to the Bingham home. Mrs. McBroom was picked up at her home shortly after the other ladies left the church. The accident in question took place as the five ladies were enroute to the Bingham residence.
The defendant, Ruth Jenkins, proceeded west on State Avenue to the point where that avenue intersects 72nd Street. State Avenue at that intersection consists of two westbound lanes of traffic separated by a median strip from the two eastbound lanes of traffic. A left turn was executed by defendant Jenkins who then stopped at the stop sign in the median strip. At this point the Jenkins' automobile was stopped facing south on 72nd Street. Defendant Jenkins left the stop sign and proceeded south. As the Jenkins' vehicle was crossing the inside eastbound lane of State Avenue, it was struck on the right side by an eastbound automobile driven by the defendant Ronald Lee Van Cleave. At the time of the accident, the defendant Van Cleave was on a business errand for his employer, defendant Edward Placencia, doing business as Plaza Auto Parts.
Mrs. Freeman and Mrs. McBroom died as a result of the accident and the others were seriously injured.
On November 9, 1970, an action was brought by Nellie Foley and Bertha Charles, individually, for damages for personal injuries, and by the husbands and sole heirs of Bessie Freeman and Mabelle McBroom for damages for wrongful death. The action was brought against Ruth Jenkins, Ronald Lee Van Cleave and Placencia. The latter two defendants were dismissed from the action shortly before trial following a settlement agreement.
The defendant Jenkins had filed a motion for summary judgment which was denied. The case proceeded to trial by jury against the defendant Jenkins, and at the close of the plaintiff's evidence the district court directed a verdict in favor of the defendant.
The plaintiffs appealed and the defendant cross-appealed. The issues raised by the appellants all revolve around the Kansas Guest Statute. (K.S.A. 8-122b, now repealed.)
In their brief, appellants raised the issue of the Kansas Guest Statute's constitutionality, but conceded at oral argument that the constitutional question was not before the court. In Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262, we stated:
'The law as declared in the overruling decision of Henry v. Bauder, supra (213 Kan. 751, 518 P.2d 362) () shall be given retroactive application to all similar cases pending in the courts of this state on January 26, 1974, and to cases filed thereafter regardless of when the causes of action accrued with the following exception: When a judgment or a verdict has been entered in a district court prior to January 26, 1974, and the same is free of reversible error under the law then existing, the law as declared in Henry v. Bauder, supra, shall not apply unless the constitutional question decided in the overruling decision has been timely presented to the trial court.' (l. c. 467, 521 P.2d l. c. 271.)
The case now before us was disposed of in March, 1973, and the constitutional question was not presented to the district court; thus, the Bauder case has no retroactive effect on the decision before us for review.
The appellants contend that even though the Kansas Guest Statute (K.S.A. 8-122b) is to be applied, the district court erred in holding they were guests within the purview of the statute. K.S.A. 8-122b reads:
In construing the guest statute, it has many times been held that whether a person is a 'guest' within the meaning of the statute depends upon the facts and circumstances of each particular case. Carruth v. Cunningham, 207 Kan. 781, 486 P.2d 1401.
We will briefly state the material facts in the case before us. As indicated, all of the occupants of appellee's automobile were members of the American War Mothers. This organization's purpose is to assist disabled veterans and their families. The members of the local chapter sewed items of clothing for disabled veterans in the nearby veterans' hospital, and they assisted veterans' families in need. The local chapter regularly gathered for sewing meetings, business meetings, visits to the veterans' hospital, and other social functions.
The same women usually rode with appellee to the meetings. There was no agreement as to compensation, and appellee had never asked to be paid. However, the passengers often made small contributions of 25 cents to 50 cents. The contributions were not made on a regular basis, and when made were dropped into appellee's purse by the passenger sitting in the front seat with the driver. On the day of the accident there was no arrangement for payment and no payment was made.
In Bedenbender v. Walls, 177 Kan. 531, 280 P.2d 630, we held:
'. . . In determining the question whether a person is or is not a 'guest' within the meaning of the statute, among the many elements to be considered are the identity and relationship of the parties; the circumstances of the transportation; the nature, type and amount of 'payment'; the benefits or advantages resulting to the respective parties growing out of the transportation; whether the 'payment,' of whatever nature, constituted a tangible benefit to the operator and was the motivating influence for furnishing the transportation; and the nature and purpose of the trip.' (Syl. 4.)
In In re Estate of Dikeman, 178 Kan. 188, 284 P.2d 622, we relied on Bedenbender in deciding that passengers in a vehicle occupied entirely by members of the Order of the Eastern Star, a fraternal organization, enroute to a chapter meeting, were guests within the guest statute notwithstanding an agreement to pay the driver for their transportation. The analogy between fraternal interests...
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