Gorelick v. Ernstein

• Decision Date: 09 March 1968
• Docket Number: No. 44959,44959
• Citation: 438 P.2d 93,200 Kan. 619
• Parties: Jack GORELICK and Roberta Gorelick, Appellants, v. Shirlee ERNSTEIN, Appellee.
• Court: Kansas Supreme Court

Page 93

438 P.2d 93

200 Kan. 619

Jack GORELICK and Roberta Gorelick, Appellants, v. Shirlee ERNSTEIN, Appellee.

No. 44959.

Supreme Court of Kansas.

March 9, 1968.

Syllabus by the Court

1. Rules for determining the status of a passenger who is riding in a private motor vehicle are examined and restated.

2. The record is examined in an action to recover damages for personal injuries sustained by a passenger in a private automobile and it is held that under the circumstances reflected in the opinion the passenger was a guest within the meaning of K.S.A. 8-122b and the trial court did not err in sustaining a motion to dismiss the action.

James L. Baska, Kansas City, argued the cause and Clarence H. Wood, Kansas City, was with him on the brief, for appellants.

Edward M. Boddington, Jr., Kansas City, argued the cause and Edward M. Boddington, N. Jack Brown and Robert A. Unverferth, Kansas City, were with time him on the brief, for appellee.

FONTRON, Justice.

Roberta Gorelick, one of the two plaintiffs, and Shirlee Ernstein, the defendant, are sisters, living near each other in Johnson County, Kansas. On the afternoon of June 10, 1963, the two sisters embarked on a shopping trip in Shirlee's car, each taking her two children along. At an intersection in Overland Park the car, driven by Shirlee, struck a light pole, and Roberta was seriously injured. Neither sister had a personal recollection of how the accident occurred.

This action was filed to recover damages for Roberta's personal injuries and for her husband, Jack's loss of consortium. The defendant, Shirlee, filed a motion for summary judgment which was sustained, and the plaintiffs, Jack and Roberts, have appealed. Throughout this opinion we shall refer to the parties either by their first names or as plaintiffs and defendant.

Gross negligence is not alleged by the plaintiffs and the sole question presented in this appeal is whether, from the record, Roberta, the injured passenger, is shown to have been a guest within the purview of the Kansas guest statute, K.S.A. 8-122b, which reads:

'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.'

The depositions of both Roberta and Shirlee were before the trial court when the defendant's motion to dismiss was sustained, and pertinent excerpts from those depositions are set forth in the record before us. The following facts appear from the depositions.

At Shirlee's suggestion, the sisters had planned this particular shopping excursion to buy a Father's Day gift, and perhaps, a birthday gift as well, for their new stepfather, Mr. Sigelbaum, and to select a birthday gift for Shirlee to give to her brother-in-law Jack, Roberta's husband and co-plaintiff herein. Shirlee arranged to take her car, (although Roberta likewise had a car for her own use) and to pick up Roberta and her children at their home.

Roberta testified in her deposition that it was decided to go in one car because she and Shirlee were going to buy a joint gift for Mr. Sigelbaum; that they were both going shopping anyway, regardless of whether they got together; that they had made a practice of going in together on Mother's Day gifts for their mother; that sometimes she would drive her own car and sometimes Shirlee would drive hers; that many times when they were going in the same general area, she and Shirlee would go together.

In Shirlee's deposition she stated that plans to go shopping were made over the phone; that the purpose of the trip was to buy gifts (Father's Day and birthday) for their stepfather and a birthday gift for her to give Jack; that she suggested to Roberta she would like Roberta's ideas and help in picking out Jack's gift; that in the past she and Roberta had gone together and purchased a gift for their mother and the two had helped each other in buying gifts for the other's husband.

We have had no previous occasion to construe our guest statute as it relates to a family shopping tour. However, we are not wholly without landmarks to guide us, for our reports are studded with cases involving application of the statute to various and sundry situations, and certain well defined patterns have evolved therefrom.

Although the statute itself fails to define the word 'guest', this court considered its meaning in Elliott v. Behner, 146 Kan. 827, 73 P.2d 1116, where we said:

'The statute does not define the word 'guest' as used in the statute. Perhaps it is impossible to frame an accurate definition of that term. Its meaning must be worked out from the facts of the cases as they arise. The common-law meaning of the term as given in the Restatement of Torts, section 490, Comment a, is as follows: 'The word 'guest' is used to denote one whom the owner or possessor of a motor car or other vehicle invites or permits to ride with him as a gratuity, that is, without any financial return except such slight benefits as is customary to extend as part of the ordinary courtesies of the road." (p. 830, 73 P.2d p. 1118.)

See, also, Broadwater v. Coleman, 10 Cir., 224 F.2d 186.

In their general import, our decisions have accorded with the common law definition. In the Elliott opinion, we said: 'It seems clear that where the driver receives compensation, the passenger is not a guest.' (146 Kan. p. 830, 73 P.2d p. 1119.) It is apparent from our cases generally that an occupant of a motor car who pays for his transportation is not a guest, and in Lightcap v. Mettling, 196 Kan. 124, 409 P.2d 792, we said that whether payment is directly from the rider to the driver is not material. We have said also that the compensation need not consist of money; that any substantial benefit accruing directly to the driver from the transportation of his passenger will be sufficient if it be motivating and not merely incidental in character. (Sparks v. Getz, 170 Kan. 287, 225 P.2d 106; Van Royen v. Osborn, 181 Kan. 39, 309 P.2d 630.)

In Bedenbender v. Walls, 177 Kan. 531, 280 P.2d 630, we discussed the subject of payment, together with other elements to be considered in determining the status of a passenger riding in a car, and we there 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...