Heim v. Werth, 47318

• Decision Date: 11 May 1974
• Docket Number: No. 47318,47318
• Citation: 214 Kan. 855,522 P.2d 389
• Parties: Ambrose HEIM, Appellant, v. Donald WERTH, Appellee.
• Court: Kansas Supreme Court

Page 389

522 P.2d 389

214 Kan. 855

Ambrose HEIM, Appellant, v. Donald WERTH, Appellee.

No. 47318.

Supreme Court of Kansas.

May 11, 1974.

Frank C. Norton and William L. Winkley, Salina, were on the brief for appellant.

Howard G. Engleman, Salina, was on the brief for appellee.

MEMORANDUM OPINION

PER CURIAM:

This is an appeal in a damage action wherein Ambrose Heim (plaintiff-appellant) sustained injuries alleged to have been caused by the negligence of Donald Werth (defendant-appellee), while Heim was a passenger in Werth's automobile. Only simple negligence was alleged in the petition, and the trial court sustained defendant's motion for summary judgment on the ground that the plaintiff was a 'guest'-that the guest statute, K.S.A. 8-122b, applied.

The sole question is whether the record before the trial court was sufficient to declare the plaintiff a guest as a matter of law.

In Smith v. Engel, 206 Kan. 298, 299, 300, 477 P.2d 937, 938, we said:

'Summary judgment may be entered as a matter of law for the moving party under K.S.A. 60-256(c) if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.

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'. . . It has been said before summary judgment is granted the court must be convinced that the issue is not genuine or that there are only immaterial or imaginary factual issues. . . .'

Also, see, Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262 (filed April 6, 1974).

There was evidence showing the plaintiff and the defendant were working on the same project for the same employer at Smith Center, Kansas, located 135 miles from Salina, where the parties resided. Defendant began work on April 10, 1972, and the plaintiff began on April 17, 1972. The day before the plaintiff started working he called the defendant and stated there was no need to use two cars. The defendant then said he would drive his car and plaintiff stated he would compensate the defendant. Plaintiff rode to Smith Center with defendant on Monday, April 17. The plaintiff did not have occasion to ride with the defendant on the following Friday or Monday. However on Friday, April 28, the plaintiff rode with the defendant to Salina and when they reached Salina, the plaintiff paid the defendant $3. The plaintiff claimed it was for the cost of gasoline. Defendant said he would drive next week. On Monday, May 1, on the way to Smith Center, the accident occurred.

Plaintiff and defendant were not personal friends nor did they socialize. The sole purpose of the ride was the business of getting to and from work.

In Bedenbender v. Walls, 177 Kan. 531, 538, 280 P.2d 630, 636, while holding the guest statute applied, we said, 'There was no relationship of mutual benefit between or among them other than of a social nature'. Here there are other benefits, and the relationship was not of a social nature. (See, Rothwell v. Transmeier, 206 Kan. 199, 203, 477 P.2d 960; Rogers v. Wahl, 210 Kan. 352, 502 P.2d 716; quoting Gorelick v. Ernstein, 200 Kan. 619, 438 P.2d 93.)

Since the evidence discloses the commuting from Salina to Smith Center was purely for business purposes, and not social; that payments were promised and made; sufficient questions of fact were raised and the motion for summary judgment should not have been sustained.

In Henry v. Bauder, 213 Kan. 751, 518 P.2d 362, opinion filed January 26, 1974, we held the Kansas guest statute unconstitutional.

In Vaughn v. Murray, supra, we held:

'. . . 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.

'As a corollary to this rule limiting the retroactive effect of Henry v. Bauder, supra, it follows that if a judgment or verdict entered prior to January 26, 1974, is thereafter set aside on proper motion in the district court or reversed on appeal because of reversible error under the prior law any trial conducted thereafter shall be governed by the law as now declared in the overruling decision, Henry v. Bauder, supra.

'. . . The summary judgment, although entered and pending prior to January 26, 1974, is reversed on appeal because of reversible error under the prior law. Since this is true the claim is remanded for trial, trial should be conducted under the law as now declared in the overruling decision and the parties should be permitted to reframe the issues by amendment of pleadings or by pretrial order.' (p. 271.)

The trial court committed reversible error in sustaining the motion for summary judgment finally entered on August 7, 1973. Appeal was made therefrom and pending here January 26, 1974.

The ruling in Vaughn is applicable here and the matter is remanded for further proceedings...