Rothwell v. Transmeier

• Citation: 206 Kan. 199,477 P.2d 960
• Decision Date: 12 December 1970
• Docket Number: No. 45807,45807
• Parties: Cheryl ROTHWELL, Appellant, v. Patricia A. TRANSMEIER, Appellee.
• Court: United States State Supreme Court of Kansas

Page 960

477 P.2d 960

206 Kan. 199

Cheryl ROTHWELL, Appellant, v. Patricia A. TRANSMEIER, Appellee.

No. 45807.

Supreme Court of Kansas.

Dec. 12, 1970.

Syllabus by the Court

1. The record is examined in an action brought by a plaintiff for damages sustained as a result of personal injuries received while riding as a passenger in an automobile driven by the defendant, and it is held: The trial court did not err in sustaining the defendant's motion for summary judgment on the ground the plaintiff was a guest and barred from recovery under K.S.A. 8-122b, where the petition alleged only simple negligence.

2. A motion for summary judgment under the provisions of K.S.A. 60-256(c) is to be sustained only where the record shows there is no genuine issue as to any material fact.

3. In considering a motion for summary judgment the movant's adversary is entitled to the benefit of all reasonable inferences that may be drawn from the facts under consideration.

4. Under K.S.A. 8-122b the word 'guest' is used to denote one whom the owner or possessor of a motor car or other vehicle invites or permits to ride with him as a gratuity, that is, without any financial return except such slight benefits as it is customary to extend as part of the ordinary courtesies of the road.

5. Under K.S.A. 8-122b where the driver receives compensation from the passenger for the conveyance, the passenger is not a guest. Compensation, however, need not consist of money. Any substantial benefit accruing directly to the driver from the transportation of his passenger will be sufficient if it be motivating and not merely incidental in character.

6. Under K.S.A 8-122b and our Kansas decisions, furthering the mutual interests of the parties is not necessarily sufficient to remove the passenger from the status of a guest, unless some business aspect is present. Social benefits and pleasures, whether mutual or otherwise, are insufficient to escape the guest statute.

7. Under K.S.A. 8-122b a reluctant guest may still be a guest within the meaning of the guest statute; and the fact, that the host-driver is much more interested in having the rider's social companionship than the rider is in giving that social companionship, cannot support a conclusion either that the rider is not a guest, or that he is paying for his transportation.

Fred N. Six, of Barber, Emerson & Six, Lawrence, argued the cause and was on the brief for the appellant.

George V. Allen, Lawrence, argued the cause and was on the brief for the appellee.

SCHROEDER, Justice:

This is an appeal in an action brought by the plaintiff for damages sustained as a result of personal injuries received while riding as a passenger in an automobile driven by the defendant. Only simple negligence was alleged in the petition, and the trial court sustained the defendant's motion for summary judgment on the ground the plaintiff was a guest and barred from recovery under K.S.A. 8-122b.

The only issue before the district court and on appeal to this court is whether the plaintiff was a guest under the above statute.

The automobile collision in which Cheryl Rothwell (plaintiff-appellant) was injured occurred on January 4, 1966, on West Sixth Street in Lawrence, Kansas. The appellant was a married woman twenty-one years of age and lived in Lawrence.

The defendant-appellee, Patricia A. Wempe, was single at the time but is now married, her name being Patricia A. Transmeier.

The motion for summary judgment was submitted to the trial court on the petition and answer, together with the deposition testimony of the appellant, which the appellee filed to prove the status of the appellant to be that of a guest.

The facts upon which the issue is to be determined are submitted in the record in the form of an agreed narrative statement of the deposition testimony of the appellant, Cheryl Rothwell. The original petition herein was filed March 28, 1967, and the amended petition was filed October 25, 1968. The deposition is dated October 19, 1968.

The material facts, in addition to those heretofore stated, as taken from the deposition, are that the appellant's husband was attending night classes in Topeka, Kansas, on Tuesdays and Thursdays as a requirement for a journeyman's electrician card. The appellant did not like to stay home by herself on these evenings, and on the day in question her husband was away attending night school. The appellee called the appellant's home between 6:15 and 6:30 and requested the appellant to help the appellee wash her car. The appellant hesitated, but then the appellee 'asked me to please help her wash her car, and I said okay.'

It was a regular practice for the appellee to come by the appellant's house on the evenings that her husband was in Topeka, and the two women would go out together. The appellant said 'and then it proceeded that I was just an accompaniment to go with her so she wouldn't be by herself to find Cecil, and I stopped going out with her regularly.'

On the evening in question the two women were together, and the appellee drove into the car wash on West Sixth Street in Lawrence and they jointly cleaned the automobile. The appellee had no dimes to operate the vacuum cleaner so the appellant supplied a couple of her dimes for this purpose.

On the particular night in question the appellant decided to help the appellee wash her car because the appellee had helped the appellant wash her car a lot of times, and she thought she owed her this.

After cleaning the car the appellee drove down Sixth Street, and while wiping a smudge off the windshield collided with a car that had stopped with its turn signal on to make a left turn. As a result of the collision the appellant's right leg was broken between the knee and the hip and she had complications resulting therefrom.

After the two women had gotten together and were proceeding to the car wash on the evening in question, the appellee informed the appellant she had a bet with her boy friend, Cecil Transmeier, whom she later married, that she could not completely clean the inside and outside of her automobile. The appellant knew that after the car washing the destination of the appellee would be to find Cecil Transmeier. The appellee would drive around in Lawrence in the usual routine manner until Cecil was found; then she would take the appellant home, as had been the custom in the past. The appellant in her deposition testified:

'The defendant knew where she was going because each time she used the plaintiff in looking for Cecil, she took the plaintiff home after he was found. The plaintiff was quite positive where she would end up. She would end up home by herself after Cecil had been found, because this happened each and every time she was with the defendant. The defendant's main objective in having the plaintiff, Mrs. Rothwell, along was to have another girl companion, as the defendant did not think it looked nice for a girl to be out looking for her boy friend alone. The defendant would not go by herself to find Cecil, and so she used the plaintiff. The plaintiff was her only friend, and plaintiff was necessary to accomplish the defendant's objective.'

The appellant had previously enjoyed the appellee's company, until the appellee started the routine of using the appellant for the purpose of finding her boy friend and then bringing the appellant home.

With reference to being at home alone at night, the appellant stated:

'Q. Do you dislike being alone at home at night?

'A. I would dislike it if I had no friend to be with, yes. I would dislike it not knowing I would be with a friend, but when I am just being used I would rather be just at home by myself because my husband wasn't gone that long, he was always home before I went to bed.'

The trip in question and other trips were not occasions for common errands for the appellant and the appellee. The appellant did not do any shopping for clothes or groceries on the nights she was with the appellee.

The appellant first contends the trial court erred in sustaining the appellee's motion for summary judgment because the deposition testimony of the appellant shows that a genuine issue of material fact exists on the guest/non-guest question.

Since the enactment of K.S.A. 60-256(c) this court has consistently adhered to the rule that a motion for summary judgment under the provisions thereof is to be sustained only where the record shows there is no genuine issue as to any material fact. (Supreme Petroleum, Inc. v. Briggs, 199 Kan. 669, 678, 433 P.2d 373.) It is unnecessary to reiterate the rules applied in reviewing an appeal from an order of the trial court sustaining a motion for summary judgment because this has been done numerous times. (Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964; Secrist v. Turley, 196 Kan. 572, 412 P.2d 976; Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P.2d 838; and West v. Prairie State Bank, 200 Kan. 263, 436 P.2d 402.)

The most recent case defining 'a genuine issue as to any material fact' is Smith v. Engel, 206 Kan. 298, 477 P.2d 937.

Here the appellant is entitled to the benefit of all reasonable inferences that may be drawn from the facts under consideration. (Supreme Petroleum, Inc. v. Briggs, supra.) On the record presented the only evidence before the district court was the sworn deposition testimony of the appellant herself. Therefore, after giving the appellant the benefit of all inferences and resolving all material and reasonable issues of doubt in her favor, is there any basis in law upon which a jury could find in favor of the appellant?

Was the appellant a guest in the automobile driven by the appellee at the moment of the collision in question? The history of K.S.A. 8-122b and the rules to be applied thereunder to determine whether a passenger in a vehicle is a guest on a given occasion have been stated in three well written recent opinions. They are: Bedenbender v. Walls, 177 Kan. 531, 280 P.2d...