Pilcher v. Erny

• Decision Date: 11 April 1942
• Docket Number: 35452.
• Citation: Pilcher v. Erny, 155 Kan. 257, 124 P.2d 461 (Kan. 1942)
• Parties: PILCHER v. ERNY.
• Court: Kansas Supreme Court

124 P.2d 461

155 Kan. 257

PILCHER v. ERNY.

No. 35452.

Supreme Court of Kansas

April 11, 1942

Rehearing Denied May 14, 1942.

Syllabus by the Court.

In automobile passenger's action against driver for injuries sustained in accident, where there was no allegation that driver was guilty of gross and wanton negligence, passenger had burden of establishing that she was a passenger for hire.Gen.St.1935, 8&BF122b.

Evidence that host's reason for having guest in automobile at time of accident was a desire to be accommodating and that host would have made the trip without any arrangement with guest respecting trip as payment to guest for repairing a coat for host warranted conclusion that transaction between guest and host did not constitute a "payment for transportation" within automobile guest statute.Gen.St.1935, 8-122b.

The automobile guest statute was enacted to make it more difficult for guests to recover damages from their hosts on account of injuries sustained in automobile wrecks.Gen.St.1935, 8-122b.

The provisions that the automobile guest statute does not apply where guest is paying for transportation apply only where chief motivating cause of plaintiff being in defendant's automobile is payment being made by plaintiff, and such provisions do not apply where plaintiff is in automobile merely because of a desire by defendant to be accommodating to extend hospitality of automobile to plaintiff, or for their mutual entertainment.Gen.St.1935, 8-122b.

Where alleged contract for transportation between driver of an automobile and a passenger was for transportation from Hutchinson to Stafford, and contract was for transportation not to begin until trip to Stafford actually started and did not cover incidental driving about Hutchinson, injuries sustained by passenger in accident occurring while driving from passenger's residence to a sandwich shop in Hutchinson before trip did not occur during trip covered by contract so as to take relationship of driver and passenger out of automobile guest statute.Gen.St.1935, 8-122b.

1.The provisions of G.S.1935, 8-122b, to the effect that the statute does not apply where the guest is paying for his transportation apply only to cases where the chief motivating cause of the plaintiff being in the automobile of defendant was the payment being made by plaintiff and not to a case where the plaintiff was in the automobile of defendant merely on account of a desire on the part of the defendant to be accommodating, to extend the hospitality of his car to plaintiff, or for their mutual entertainment.

2.In an action by a guest for damages alleged to have been sustained when she was riding in a car driven by her host the evidence of plaintiff is examined, and it is held that the transaction proven by plaintiff between defendant and plaintiff did not constitute a payment for the transportation within the meaning of G.S.1935, 8-122b.

3.An alleged contract for transportation between the driver of an automobile and a passenger therein is examined and it is held that the injury to plaintiff did not take place during the trip covered by the alleged contract so as to take the relationship of the driver of the car and the passenger in the car out of the provisions of G.S. 1935, 8-122b.

Appeal from District Court, Reno County; F. B. Hettinger, Judge.

Action by Ruth Pilcher against John F. Erny for injuries sustained in an automobile accident.From a judgment for plaintiffdefendant appeals.

Reversed with directions. statute.

George Siefkin, of Wichita (Kenneth L. Hodge, of McPherson, Claude E. Chalfant, of Hutchinson, Robert C. Foulston, Samuel E. Bartlett, Lester L. Morris, George B. Powers, Carl T. Smith, C. H. Morris, and John F. Eberhardt, all of Wichita, on the brief), for appellant.

Max Wyman, of Hutchinson (Erskine Wyman, of Hutchinson, on the brief), for appellee.

SMITH Justice.

This was an action for damages alleged to have been sustained when the automobile in which plaintiff was a passenger collided with a truck that was parked on the street without lights.The action was against the driver of the car in which plaintiff was riding.Judgment was for the plaintiff.Defendant appeals.

The petition alleged that plaintiff had made a contract with defendant to take her from Hutchinson, Kan., to Stafford in his automobile; that he was in full charge of the machine and drove it so negligently that he drove it into the rear of a truck and trailer that was parked on the side of the street, and injured plaintiff.

The answer was a general denial and a special denial that plaintiff was a passenger for hire and an allegation that the collision was caused by the negligence of the driver of the truck; also an allegation that the plaintiff was guilty of contributory negligence.

The reply was a general denial.

At the close of the plaintiff's evidence the defendant demurred to it on the ground that it did not prove a cause of action.The jury answered special questions and returned a verdict for plaintiff.Judgment was rendered on the verdict.Hence this appeal.

At the outset it should be noted that the action was by a passenger in an automobile against the driver of it; there was no allegation that the defendant was guilty of gross and wanton negligence-- hence plaintiff in order to recover against defendant had the burden of establishing that she was a passenger for hire.SeeG.S.1935, 8-122b.

We shall examine the evidence on that point.The plaintiff testified that she was a seamstress and lived at 129 East 2d St., Hutchinson; that defendant had asked her if she wanted to go to Stafford with him sometime before there was any transaction about a coat; that defendant delivered papers in his automobile on Sundays over a route that took him through Stafford and out to western Kansas; that defendant brought a leather coat to her that was ripped in the sleeve and she fixed it for him and charged him $1.25 for it; that defendant later asked her if she wanted to go to Stafford and she said she did and when he called for the coat and offered to pay for it she said "No"she would let the repairing go on the expenses of herself and her son to Stafford.She then testified:

"Q.What did he say about that?A.Well, he first said, 'You don't owe me anything for going out there, that is all right.I will take you, I am going anyway, I am making the trip anyway and I will take you out.'

"Q.What did you tell him?A.I told him I didn't want it that way; I paid my expenses as I went and when I don't have them, I don't go.

"Q.What did he say to that?A.Well, if I felt that way about it, it was all right."

Defendant argues here that the above testimony did not prove a contract for transportation between plaintiff and defendant within the meaning of G.S.1935, 8-122b.He argues that the evidence proved that the real motivating cause of defendant having plaintiff in his car was a desire on his part to be accommodating and to extend to her and her son the...