Rupe v. Smith, 40597

• Citation: 181 Kan. 606,313 P.2d 293
• Decision Date: 03 July 1957
• Docket Number: No. 40597,40597
• Parties: Gillie C. RUPE, Appellee, v. Phyllis Maurene SMITH and O. D. Smith, Her Father and Natural Guardian, Appellants.
• Court: United States State Supreme Court of Kansas

Page 293

313 P.2d 293

181 Kan. 606

Gillie C. RUPE, Appellee, v. Phyllis Maurene SMITH and O. D. Smith, Her Father and Natural Guardian, Appellants.

No. 40597.

Supreme Court of Kansas.

July 3, 1957.

Rehearing Denied Sept. 13, 1957.

Syllabus by the Court

1. Where a petition for wrongful death brought by the mother of the decedent against the owner and operator of an automobile as defendants alleges in substance that the decedent and defendant operator of the automobile were close personal friends who shared their incomes and pleasures, and who put their individual incomes into a joint checking account and from this joint account all expenses of both either individually or jointly were paid by check or by cash including the expenses of operating the automobile in which decedent died; that the decedent was riding in the automobile driven and controlled by defendant operator both of whom were en route to Wichita; that while proceeding on a Kansas highway decedent was in the front seat with defendant operator and was asleep; that defendant operator drove the automobile off the road into a concrete embankment causing the decedent's death; that there were no apparent defects in the car, road or limited visibility and that the plaintiff had no knowledge as to how or why the fatal accident occurred, it is held, distinguishing Bedenbender v. Walls, 177 Kan. 531, 280 P.2d 630; and In re Estate of Dikeman, 178 Kan. 188, 284 P.2d 622, that under the facts as alleged in the petition, (1) the decedent is a 'paying guest' for such transportation in the automobile of the defendant at the time of the accident and thus the guest statute (G.S.1949, 8-122b) has no application; and (2) the trial court did not err in overruling a demurrer to the petition which states a cause of action for ordinary negligence and invokes the rule of res ipsa loquitur.

2. A petition in an ordinary automobile negligence case may contain allegations of fact which, if proved, authorizes the application of the doctrine of res ipsa loquitur. The same rules are followed in determining its application as are followed in other tort cases.

3. The rule governing the construction of a petition before and after attack by a motion to make more definite and certain stated, discussed and applied.

Robert M. Siefkin, Wichita, argued the cause and George B. Powers, Carl T. Smith, John F. Eberhardt, Samuel E. Bartlett, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Richard C. Harris and Gerald Sawatzky, Wichita, were with him on the briefs for appellants.

John Callahan, Wichita, argued the cause and Dale Kidwell, George W. Ball, and Jack H. Greene, Wichita, were with him on the briefs for the appellee.

HALL, Justice.

This is an appeal from an order overruling a demurrer to the petition in a wrongful death action.

Gillie G. Rupe, the plaintiff and appellee in this action, filed a suit for wrongful death against Phyllis Maurene Smith and O. D. Smith, her father and natural guardian, defendants and appellants herein.

After proper allegations on capacity to sue, the plaintiff alleged that the defendant Phyllis Maurene Smith is unmarried and under the age of 21 years and that on the thirteenth day of October, 1955, Margaret Sue Rupe, daughter of plaintiff, was killed while riding in an automobile driven by defendant and owned by her father, O. D. Smith.

The petition then alleges as follows:

'4. That prior to her death, the deceased and the Defendant were close personal friends who shared their incomes and their pleasures. The deceased and the Defendant before and up to the time of deceased's demise put their individual incomes into a joint checking account in the Southwest National Bank in Wichita, Kansas. That from this joint account all expenses of both girls either individually or jointly were paid by check, or by cash taken from this account. That the expenses of operating the automobile in which deceased died were paid from these joint funds.

'5. That late in the evening of October 13, 1955, deceased was riding in the automobile driven and controlled by Defendant, which said automobile was owned by O. D. Smith. These two girls were en route to Wichita, Kansas, on Kansas Highway No. 14 in Barber County at or near the town of Hazelton. That at this time, deceased was in the front seat with the defendant and was asleep. That when the automobile driven by the defendant reached a point on said highway about 1.4 miles east of said town of Hazelton on a level stretch of road, it was driven off the road by defendant into a concrete embankment, the severe impact of which caused the almost immediate death of the deceased. That the said automobile driven by Defendant was a 1950 Ford Coach which had no apparent defects. That the road on which the parties were driving was straight and visibility unlimited. Said road was black-topped, had a dry surface and had no defects. That Plaintiff has no knowledge as to how or why the fatal accident occurred.'

The defendants moved the court to strike paragraph 4 for the reason that the allegations therein contained were incompetent and immaterial; and to make paragraph 5 definite and certain by setting forth with particularity the alleged act or acts of negligence.

The court overruled the motion to strike and to make definite and certain. The defendants then demurred generally to the petition and the court overruled the demurrer.

The single specification of error before this court is the order of the trial court overruling the defendants' demurrer to the plaintiff's petition.

The plaintiff brought this wrongful death action on the theory the decedent, Margaret Sue Rupe, was a 'paying passenger' in the automobile driven by defendant, Phyllis Maurene Smith, and thus she was not a 'guest' under the Kansas guest statute (G.S.1949, 8-122b). The guest statute (G.S.1949, 8-122b) 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.' (Italics ours.)

On this theory plaintiff alleges ordinary negligence and not gross and wanton negligence. In the allegations of negligence, plaintiff also invokes the doctrine of res ipsa loquitur. These allegations are in paragraph 5 of the petition.

The defendants contend that the decedent, Margaret Sue Rupe, was not a 'paying passenger' but a 'guest' under G.S.1949, 8-122b, and as such plaintiff must plead gross and wanton negligence to escape the limitations of the statute. The defendants also contend that since the doctrine of res ipsa loquitur cannot be invoked to establish gross and wanton negligence it has no application to this case.

To substantiate the contention that the decedent was a guest without payment for such transportation, defendants submit that two recent decisions of this court should govern the disposition of their appeal. Defendants rely on Bedenbender v. Walls, 177 Kan. 531, 280 P.2d 630; and In re Estate of Dikeman, 178 Kan. 188, 284 P.2d 622. These are recent and leading cases under the guest statute.

In the Bedenbender case the plaintiffs and defendants were social and personal friends and often went on hunting excursions together, alternating in the use of their automobiles. They had an understanding and agreement to the effect that when they drove defendants' car the plaintiff husband would pay for gas, oil and meals for the four of them and vice versa. The parties decided to go on a pheasant hunting trip to Nebraska. It was mutually understood and agreed that they would adhere to their past agreement in the matter of paying expenses. They started out in defendants' car. At noon they stopped for lunch. Plaintiff husband paid for it. Later on they stopped for gas and plaintiff husband paid for it. Shortly thereafter the car was involved in a one car automobile collision. At the conclusion of plaintiffs' evidence the defendants' demurrer was sustained on the ground plaintiffs were 'guests' and that since the evidence established only ordinary negligence they were precluded from recovery.

The court held [177 Kan. 531, 280 P.2d 631]:

'Under the guest statute (G.S.1949, 8-122b) one who is transported by the owner or operator of a motor vehicle as his guest, 'without payment for such transportation,' does not have a cause of action for damages against the owner or operator for injuries, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence on the part of such operator. [Syl. p1.]

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'When the nature of the trip is purely for social purposes and mutual pleasure and enjoyment of the parties, payment of expenses, such as for gasoline, oil and meals, by the one being transported, does not constitute 'payment for such transportation' within the meaning of the statute.' (Syl. p 6.)

In the Dikeman case the facts were essentially as follows: Randal Dikeman, the appellant, and other persons were members of the Order of the Eastern Star, a fraternal organization, and as members of such Order they had been chosen as delegates and representatives of their local chapter to attend the Grand Chapter meeting in Topeka. In contemplation of the trip, appellant and Dikeman orally agreed that appellant would pay him a reasonable sum for transportation to Topeka and back from Pratt. Pursuant to this agreement, Dikeman transported appellant, along with others not here involved, to Topeka. The purpose of the trip was to attend the Grand Chapter meeting of the Order. While at the meeting Dikeman, the appellant, and others accompanying them on the trip, discussed what each would pay Dikeman for transportation. They decided the amount should be fixed upon completion of the trip....