Sayre v. Malcom

Decision Date07 April 1934
Docket Number31594.,31589
Citation31 P.2d 8,139 Kan. 378
PartiesSAYRE v. MALCOM.
CourtKansas Supreme Court

Syllabus by the Court.

Action of automobile host in driving at speed of 35 miles per hour for distance of 75 feet with eyes off road until he struck culvert held not "gross and wanton negligence" so as to render host liable to injured guest (Rev. St. Supp 1933, 8--122b).

Automobile guest statute relieves host from liability to guest for injuries resulting from "negligence" as that term is distinguished from "wantonness" (Rev. St. Supp 1933, 8--122b).

The conduct properly characterized under the terms "negligence" and "wantonness" differs not in degree, but in kind, the former denoting lack of due care under the circumstances, the latter denoting conscious or intentional misconduct from which injury to some one is likely to result and with a reckless disregard of such consequence.

1. In an action for damages for personal injuries to a guest in an automobile, the petition is considered and held not to state a cause of action under R. S. 1933 Supp. 8-- 122b.

2. The interpretation of this statute made by this court in Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573 considered and adhered to.

Apppeal from District Court, Montgomery County; J. W. Holdren, Judge.

Action by Aaron Sayre against Ira E. Malcom. From an adverse judgment, defendant appeals.

Judgment reversed and cause remanded, with directions.

SMITH J., dissenting.

John Bertenshaw and Kirke C. Veeder, both of Independence, for appellant.

W. N. Banks, O. L. O'Brien, and Walter L. McVey, all of Independence, for appellee.

HARVEY Justice.

This is an action for damages for personal injuries sustained in an automobile casualty. Defendant's demurrer to the petition was overruled, and he has appealed. The sole question before us is whether the petition states a cause of action under our statute, which reads:

"That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payments 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." R. S. 1933, Supp. 8--122b.

The pertinent portions of the petition are: That plaintiff was defendant's guest riding in an automobile owned and operated by defendant, which was being driven south on U.S. Highway No. 160 at a speed of about 35 miles per hour. It was a clear day and the highway was unobstructed by other traffic. The traveled portion of the highway is about 27 feet wide, but at the point of the casualty there is a culvert across the highway with abutments 3 1/2 feet high, about 20 feet apart, one on each side of the highway. It is then alleged:

"That defendant is guilty of gross and wanton negligence toward plaintiff as follows: That the said defendant with careless and reckless disregard for the safety of the plaintiff, drove said car to the south, approaching said culvert on the right hand side of the road and while driving carelessly and negligently took his eyes off the road when he was about 75 feet north of said culvert and without just cause or excuse continued to drive said car at said high rate of speed, without having his eyes upon or looking at the road or observing where he was going, and in a careless, gross and wantonly negligent manner drove said automobile, without slacking or controlling the speed thereof, into and against the left hand side of said abutment or railing, striking the side of the left front wheel of the car against said railing and thereby causing injury to said plaintiff as hereinafter set out."

In Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573, it was held the statute above quoted relieves the operator of an automobile from liability to his guest resulting from negligence, as that term is distinguished from wantonness. Cases are...

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23 cases
  • Williamson v. McKenna
    • United States
    • Oregon Supreme Court
    • August 10, 1960
    ...terms to describe negligence.' See also Johnson v. Huskey, supra; Hickert v. Wright, 1957, 182 Kan. 100, 319 P.2d 152; Sayre v. Malcom, 1934, 139 Kan. 378, 31 P.2d 8. In Vermont the guest statute (23 V.S.A. § 1491) includes the phrase 'gross or wilful negligence.' This is construed to mean ......
  • Owen v. Taylor
    • United States
    • Idaho Supreme Court
    • April 29, 1941
    ... ... 256; Wachtel v. Bloch, 160 S.E. 97 ... Iowa--"Reckless Operation"--Shenkle v. Mains, 247 ... N.W. 635. Kansas--"Gross and Wanton"--Sayre v ... Malcolm, 31 P.2d 8. Massachusetts--No Guest ... Statute--Burke v. Cook, 141 N.E. 585; Broderick v ... Lyons, 165 N.E. 11 ... ...
  • Davis v. Wyatt
    • United States
    • Missouri Supreme Court
    • November 14, 1949
    ...Co., 164 Kan. 376, 190 P.2d 850; Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573; Blosser v. Wagner, 144 Kan. 318, 59 P.2d 37; Sayre v. Malcom, 139 Kan. 378, 31 P.2d 8; 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, 4......
  • Davis v. Wyatt
    • United States
    • Missouri Supreme Court
    • November 14, 1949
    ...190 Pac. (2d) 850; Stout v. Gallemore, 138 Kan. 385, 26 Pac. (2d) 573; Blosser v. Wagner, 144 Kan. 318, 59 Pac. (2d) 37; Sayre v. Malcom, 139 Kan. 378, 31 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......
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