Leabo v. Willett

• Decision Date: 07 December 1946
• Docket Number: 36717.
• Citation: 175 P.2d 109,162 Kan. 236
• Parties: LEABO v. WILLETT.
• Court: Kansas Supreme Court

175 P.2d 109

162 Kan. 236

LEABO v. WILLETT.

No. 36717.

Supreme Court of Kansas

December 7, 1946

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

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

Action by Jack Don Cecil Leabo, Jr., a minor, by Jack Don Cecil Leabo, Sr., his father and next friend, against F. W Willett, as administrator of the estate of William E Willett, deceased, for damages for personal injuries sustained in automobile accident. From an order sustaining a demurrer to the petition, the plaintiff appeals.

Order affirmed.

Syllabus by the Court

1. In order to render the operator of a vehicle liable in damages under our guest statute his conduct must be such as to denote conscious or intentional misconduct from which injury to someone is likely to result and with a reckless disregard of such consequence.

2. Our guest statute, G.S.1935, 8-122b, interpreted, and held, it does not expressly require the guest, in an action for damages against the operator of the vehicle, to allege he exercised due care for his own protection. Nor can it fairly be said to be required by implication.

3. Failure of a guest to exercise due care for his own protection is regarded, in this state, as a form of contributory negligence.

4. Contributory negligence is an affirmative defense which ordinarily must be pleaded and proved by the defendant and a petition framed on the guest statute is not demurrable, on the ground plaintiff failed to exercise due care for his own protection, unless such failure appears on the face of the petition.

5. The petition in an action to recover damages under the guest statute examined and held not to state facts showing gross and wanton negligence by the operator of the vehicle in which the guest was riding.

John P Flinn, of Newton (Alden E. Branine and Fred Ice, both of Newton, on the brief), for appellant.

Carl I. Winsor, of Wichita (Harlin E. Bond and Rupert Teall, both of Wichita, and J. G. Somers, of Newton, on the brief), for appellee.

WEDELL Justice.

This was an action to recover damages under our guest statute. A demurrer was sustained to the petition of the plaintiff and from that ruling the plaintiff appeals.

The action was instituted for the plaintiff, Jack Don Cecil Leabo, Jr., a minor, by Jack Don Cecil Leabo, Sr., his father and next friend, against F. W. Willett, administrator of the estate of William E. Willett, deceased. The deceased was the driver of the car and the son of F. W. Willett. The automobile belonged to the father of the deceased. The deceased had driven the car with the consent and permission of his father and had invited the minor plaintiff and some other boys to ride with him as his guests. They had driven to a farm house near Newton commonly known and designated as the 'haunted house.' Thereafter they started to drive to the Newton airport.

In addition to the foregoing facts the petition alleged:

'* * * that at a point approximately six (6) miles North and East of the City of Newton said William E. Willett, now deceased, who was then and there operating and driving said automobile, lost control thereof and ran off the highway and into and against a telephone pole at the left side of the highway, seriously injuring and damaging said petitioner as hereinafter stated * * * That the road or highway upon which said automobile was being operated by the said William E. Willett at the time said accident occurred was an unimproved dirt highway with crooked wheel ruts or tracks therein, which were approximately eight (8) to ten (10) inches deep. That said accident was the legal result of the gross and wanton acts and misconduct of the said William E. Willett in driving said automobile over said deeply rutted road or highway at a dangerous and excessive rate of speed, to-wit: 65 to 70 miles per hour.'

The action was originally filed in the probate court of Harvey county as a claim against the decedent's estate. Judgment was rendered against the defendant for a portion of the damage claimed and the defendant appealed to the district court. In the district court defendant, upon request, was granted leave to plead. He filed a general demurrer to the petition which was sustained. The sole question presented is whether the petition stated a cause of action under our guest statute, G.S.1935, 8-122b, which provides:

'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.'

It will be observed the injury must be the result of both gross and wanton negligence. Do the facts alleged in the petition disclose the operator of the vehicle was guilty of the kind of negligence required by the statute?

In order to render the operator of a vehicle liable in damages under our guest statute his conduct must be such as to denote conscious or intentional misconduct from which injury to someone is likely to result and with a reckless disregard of such consequences. Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573; Sayre v. Malcom, 139 Kan. 378, 379, 31 P.2d 8; Ewing v. Edwards, 140 Kan. 325, 326, 36 P.2d 1021; Aduddell v. Brighton, 141 Kan. 617, 42 P.2d 555; Murrell v. Janders, 141 Kan. 906, 44 P.2d 218; Anderson v. Anderson, 142 Kan. 463, 50 P.2d 995; Cohee v. Hutson, 143 Kan. 784, 57 P.2d 35.

In the Stout case, supra, we quoted with approval the definition of wantonness as contained in 40 Cyc. 294, as follows:

"Action without regard to the rights of others; a reckless disregard of the rights of others; reckless sport; wilfully unrestrained action, running

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