Lloyd v. Runge

• Decision Date: 23 January 1960
• Docket Number: No. 41600,41600
• Citation: 186 Kan. 54,348 P.2d 594
• Parties: David J. LLOYD, Appellant, v. Gordon L. RUNGE and A. H. Davis, Appellees.
• Court: Kansas Supreme Court

Page 594

348 P.2d 594

186 Kan. 54

David J. LLOYD, Appellant, v. Gordon L. RUNGE and A. H. Davis, Appellees.

No. 41600.

Supreme Court of Kansas.

Jan. 23, 1960.

Rehearing Denied March 9, 1960.

Syllabus by the Court

In an action to recover damages for personal injuries sustained by the plaintiff as the result of a motor vehicle collision, occurring near a street intersection, while riding in the defendant's automobile, the plaintiff's evidence is examined in the light of the liberal rule prevailing in this jurisdiction with respect to demurrers to evidence and, it is held, (1) the evidence did not establish, as a matter of law, (a) that plaintiff was a guest within the purview of G.S.1949, 8-122b or (b) that defendant was guilty of no negligence which was the proximate cause of the collision, and (2) it was error to sustain the demurrer on either premise.

William L. Rees, Topeka, argued the cause, and Hall Smith and Wright W. Crummett, Topeka, were with him on the briefs, for appellant.

Raymond Briman, Topeka, argued the cause, and Lester M. Goodell, Margaret McGurnaghan, Marlin S. Casey, Thomas R. Sewell, and Gerald L. Goodell, Topeka, were with him on the briefs, for appellee.

PARKER, Chief Justice.

This was an action to recover damages for personal injuries sustained as a result of an automobile collision occurring just west of the city limits of Topeka, near the intersection of West Tenth and Hope Streets, while the plaintiff was riding in an automobile, owned and driven by defendant Runge. Plaintiff appeals from the trial court's action in sustaining a demurrer to his evidence, in rendering judgment against him for costs, and in overruling his motion for a new trial.

In order to clarify the situation, as it appears from the face of the record presented, it should be stated that originally plaintiff brought the action by filing a petition in the district court wherein he sought to recover damages from Runge and A. H. Davis jointly on grounds of negligence in the operation of their respective automobiles, the latter being the owner of the other vehicle involved in the collision; and added that prior to the commencement of the trial the action against Davis was dismissed and he was later called and testified as a witness for plaintiff. From the foregoing although the petition contains allegations relating to Davis and his negligence, the answer of Runge admits that negligence and the reply denies the allegations of a separate answer by Davis, it appears no further reference need be made to Davis and that this opinion can proceed as if the action had been commenced against Runge as the only defendant.

No appellate issue is raised respecting the pleadings. Therefore all that need be said with regard to them is that the petition charges the proximate and concurrent cause of the damages sustained by plaintiff was due to divers acts of negligence on the part of the defendant in driving his automobile in such manner as to result in the collision of the two motor vehicles involved; that the answer of defendant denies that he was guilty of negligence or gross negligence and wanton acts as alleged in the petition, denies that there was any agreement between him and any other person whereby he was to be compensated for the use of his automobile, and in general denies any acts of misconduct on his part, negligent or otherwise, which would give the plaintiff a cause of action against him or make him liable in damages for any injuries sustained by plaintiff as a result of the involved collision; and that the reply denies generally any and all allegations of new matter contained in the defendant's answer.

Upon issues joined as above stated the cause came on for trial by a jury. Thereupon plaintiff adduced his evidence and rested.

Defendant then demurred to plaintiff's evidence. Such demurrer reads:

'At this time the defendant demurs to the evidence of the plaintiff on the grounds he has failed to prove a cause of action for two reasons, three reasons: He has failed to take himself outside of the guest statute, secondly, he has failed to prove both negligence and wanton. Thirdly, that even if he has taken himself outside the guest statute he has failed to prove negligence sufficient to go to the jury.'

Subsequently, after consideration of arguments on the issues raised, the trial court sustained the demurrer, discharged the jury and rendered judgment in favor of the defendant and against plaintiff for costs. Thereafter, and following the overruling of his motion for a new trial, plaintiff perfected the appeal to which we have previously referred.

From what has been previously stated it becomes obvious the over-all issue raised by this appeal is whether the trial court erred in sustaining the demurrer to the appellant's evidence. On that account it should now be stated such issue must be disposed of in the light of the universal rule (Messinger v. Fulton, 173 Kan. 851, 252 P.2d 904; Cain v. Steely, 173 Kan. 866, 252 P.2d 909; Brent v. McDonald, 180 Kan. 142, 300 P.2d 396, and numerous other decisions to the same effect listed in West's Kansas Digest, Appeal & Error, k 927; Trial, k156, ; Hatcher's Kansas Digest [Rev.Ed.], Appeal & Error, § 488, Trial § 149) that in ruling on a demurrer to evidence courts do not weigh or compare contradictory testimony but must accept all evidence as true, give it the benefit of all inferences that may be drawn therefrom, and consider only such portions thereof as are favorable to the party adducing it.

Turning to the record, and applying the rule, it can be said the general factual picture essential to a disposition of the above mentioned issue may be stated in the form of the statement of facts on which, without relating all details of the testimony, appellant relies in his brief to sustain his position the ruling on the demurrer was improper. That statement reads:

'As shown by his testimony Appellant was the junior member of an Air Force tanker plane crew which was transferred to Forbes Air Force Base at Topeka, in December, 1955, and was stationed and operating here in March, 1956. This crew regularly worked together as a unit and was the 'standboard', i. e., the instructor and checkout, crew for their Wing. Included in the crew was the Appellee, Master Sergeant Runge, Capt. Thomas Gorrill, and Lt. Alpha Peden. Capt. Gorrill was the senior in military rank and authority, and the plane commander. All had assigned duties. Appellant 'flew' the boom which was connected with the planes to be refueled in flight.

'Prior to March 12, 1956, this crew was notified that it would be ordered to Smoky Hill Air Force Base at Salina, Kansas, for temporary duty of a few days duration commencing March 14, 1956. The duty was to consist of a refresher course and instructions in the use of high altitude oxygen equipment. This course was required by the Air Force periodically of all similar flying personnel and was for the benefit and protection of the personnel concerned. It was mandatory and not optional.

'At the conclusion of a flying mission on March 12, 1956, Capt. Gorrill told his crew members, including Appellant and Appellee, to meet at the barracks or the N. C. O. Club at 3:30 P.M. on the following day, March 13, 1956, preparatory to the trip to Smoky Hill Air Force Base.

'The crew met at the N. C. O. Club at the time stated. Appellant and Lt. Peden left the Club to go elsewhere on the base. Capt. Gorrill and M/Sgt. Runge remained in the N. C. O. Club. When appellant and Lt. Peden returned to the Club after 30-45 minutes Capt. Gorrill announced that they would all start for Salina. They all went directly to the barracks where the Appellee, Runge, changed his clothes. Appellant and Appellee rode from the Club to the barracks in Appellee's car and Capt. Gorrill and Lt. Peden rode together in Capt. Gorrill's car.

'Appellant does not known by whom and how it was determined that M/Sgt. Runge's car would be used to take the crew to Salina. Nothing was said on this subject in his presence. When appellant and appellee emerged from the barracks, Capt. Gorrill had already parked his car beside the building and the officers were at Runge's car with their effects. Capt. Gorrill told M/Sgt. Runge to go to the orderly room and get their travel orders. All four got in Runge's car and he drove to the orderly room. Here the Captain ordered Appellant to go in and get the orders.

'Appellant went into the Orderly Room and asked for the travel orders for the group. When the office personnel could not locate the travel orders for this group, the squadron Operations Officer, Major Caskey, told Appellant to tell Capt. Gorrill that their written orders could not be located and to proceed to Smoky Hill Air Force Base without them.

'Appellant delivered this order to Capt. Gorrill and Capt. Gorrill said 'Get in the car and let's go.'

'Capt. Gorrill was carrying the individual ground training records of the crew members and retained them in his custody at all times.

'The party left the Base in M/Sgt. Runge's car. As they were proceeding through Topeka on West 10th Street, Runge started driving in a fast and reckless manner and continued to do so although Appellant remonstrated with him. Near the intersection of West 10th Street and Hope Street, Appellee Runge was driving 60 miles an hour, at dusk, in a 30 mile zone. At the intersection he came upon an eastbound car attempting to make a left turn and drove into and collided with this car (the Davis car) without applying his brakes or turning aside.

'The Runge car then skidded 89 feet across the road and into a ditch and ran head on into a concrete culvert. Appellant was seriously injured in this crash and after about 1 year of hospitalization and treatment was discharged from the Air Force for injuries received in this collision. They were determined to be 'injuries received in the line of duty.'

'Written travel orders covering the intended...