Murrell v. Janders
| Decision Date | 04 May 1935 |
| Docket Number | 32274. |
| Citation | 44 P.2d 218,141 Kan. 906 |
| Parties | MURRELL v. JANDERS. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Matters not properly part of record on appeal should not be brought to Supreme Court by abstract, counter abstract, or otherwise.
On appeal from order sustaining demurrer to plaintiff's petition, only proper record consists of petition, demurrer thereto, journal entry of court's ruling thereon, and notice of appeal; counter abstract of plaintiff's deposition being no part of proper record.
Automobile guest's petition against host alleging that host was driving rapidly on paved highway, that second of three approaching automobiles started to make left turn, but, on observing host's automobile, turned back, but not entirely across center line of highway, leaving enough room on host's side of pavement to permit him to pass, and that, either because of host's speed or his inattention his automobile struck other automobile, causing collision with third automobile, stated cause of action for negligence only and not for "gross and wanton negligence" within guest statute (Rev. St. Supp. 1933, 8--122b).
1. Matters not properly a part of the record on appeal should not be brought to this court by abstract, counter abstract or otherwise.
2. In an action by a guest against her host for injuries sustained in an automobile casualty, the petition is examined, and held to state a cause of action for negligence only.
Appeal from District Court, Reno County; J. G. Somers, Judge.
Action by Ida E. Murrell against A. P. Janders. From an order sustaining a demurrer to plaintiff's petition, plaintiff appeals.
J. S Simmons, Alva L. Fenn, Herbert E. Ramsey, and Stuart Simmons all of Hutchinson, for appellant.
A. C. Malloy, Roy C. Davis, Warren H. White, and Frank S. Hodge, all of Hutchinson, for appellee.
This an appeal from an order of the trial court sustaining a demurrer to plaintiff's petition in an action by a guest against her host for personal injuries sustained in an automobile casualty. The question presented is whether the petition states a cause of action under our so-called guest statute, R. S. 1933 Supp. 8--122b.
A preliminary question must be considered. Defendant's demurrer to the petition was at first overruled. Defendant answered. Later defendant obtained permission of the court to withdraw his answer and refile his demurrer. This was done, and the demurrer was sustained. In the meantime, plaintiff's deposition was taken by her counsel, as her home is in Texas. On this appeal appellee, in a counter abstract, has abstracted this deposition, and contends plaintiff's testimony is less favorable to her than the allegations of her petition. Appellant contends the counter abstract is no part of a proper record on this appeal, and that it should be stricken. The point is well taken. The only proper record on this appeal consists of the petition, the demurrer thereto, the journal entry of the ruling of the court thereon, and the notice of appeal.
Briefly it is alleged in the petition that on October 15, 1932, plaintiff, then about 55 years of age, and not accustomed to handling automobiles, was riding in an almost new Hudson automobile owned and driven by her nephew, the defendant, and as his guest, from Wichita to Hutchinson, Kan., on a paved state highway, on which the traffic is quite heavy. She occupied the left side of the back seat; also defendant's wife and his mother were in the automobile. As they neared Hutchinson, there were dwellings near the highway with driveways leading to them. Defendant was accustomed to driving along this highway and knew the danger of accidents thereon, especially in approaching and passing other cars. Despite this knowledge, and in disregard thereof, and with total lack of care and consideration for those riding with him and in other cars on the highway, he intentionally drove his car at the negligent and wanton speed of 60 to 70 miles per hour; that so driving west on the highway a car driven by one Rupard, with a car in front of it and one behind it, approached on the highway from the west; that, when about 600 feet from defendant's...
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Long v. Thompson
... ... Gallemore, 138 Kan. 385; Donelan v. Wright, 148 ... Kan. 287; Ewing v. Edwards, 140 Kan. 325; ... Aduddell v. Brighton, 141 Kan. 617; Murrell v ... Janders, 141 Kan. 906; Anderson v. Anderson, ... 142 Kan. 463; Cohee v. Hutson, 143 Kan. 784; ... Stevers v. Walker, 125 S.W.2d 920; Evans ... ...
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Davis v. Wyatt
... ... Malcom, 139 Kan. 378, 31 P.2d 8; Ewing ... v. Edwards, 140 Kan. 325, 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; ... ...
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Long v. Foley
...is clear that the existing facts disclose more than speed alone. Neither have we disregarded decisions cited by him. See Murrell v. Janders, 141 Kan. 906, 44 P.2d 218; Anderson v. Anderson, 142 Kan. 463, 50 P.2d 995; Donelan v. Wright, 148 Kan. 287, 81 P.2d 50; Aduddell v. Brighton, 141 Kan......
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Davis v. Wyatt
...Pac. (2d) 8; Ewing v. Edwards, 140 Kan. 325, 36 Pac. (2d) 1021; Aduddell v. Brighton, 141 Kan. 617, 42 Pac. (2d) 555; Murrell v. Janders, 141 Kan. 906, 44 Pac. (2d) 218; Anderson v. Anderson, 142 Kan. 463, 50 Pac. (2d) 995; Cohee v. Hutson, 143 Kan. 784, 57 Pac. (2d) 35; Donelan v. Wright, ......