Sayre v. Malcom, 31589

CourtUnited States State Supreme Court of Kansas
Writing for the CourtHARVEY, Justice.
Citation31 P.2d 8,139 Kan. 378
Docket Number31594.,31589
Decision Date07 April 1934
PartiesSAYRE v. MALCOM.

31 P.2d 8

139 Kan. 378

SAYRE
v.
MALCOM.

Nos. 31589, 31594.

Supreme Court of Kansas

April 7, 1934


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 [31 P.2d 9.] in an automobile owned and operated by defendant, which was being driven south on U.S....

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18 practice notes
  • Owen v. Taylor, 6880
    • United States
    • United States State Supreme Court of Idaho
    • 29 Abril 1941
    ...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. Michigan--"Gross"--In re Mueller's Estate, 273 N......
  • Williamson v. McKenna
    • United States
    • Supreme Court of Oregon
    • 10 Agosto 1960
    ...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 In Vermont the guest statute (23 V.S.A. § 1491) includes the phrase 'gross or wilful negligence.' This is construed to mean conduct o......
  • Wright's Estate v. Pizel, Nos. 37743
    • United States
    • United States State Supreme Court of Kansas
    • 28 Enero 1950
    ...supra. This construction given to the statute has been followed and approved by our court in the following cases: Sayre v. Malcom, 139 Kan. 378, 379, 31 P.2d 8; Ewing v. Edwards, 140 Kan. 325, 36 P.2d 1021; Aduddell v. Brighton, 141 Kan. 617, 619, 42 P.2d 555; Anderson v. Anderson, 142 Kan.......
  • Gallegher v. Davis
    • United States
    • Superior Court of Delaware
    • 13 Enero 1936
    ...rise to an action under the statute, 45 C.J. 678; Lee v. Lott, supra; Bobich v. Rogers, 258 Mich. 343, 241 N.W. 854; Sayre v. Malcom, 139 Kan. 378, 31 P. (2d) 8; Fly v. Swink, 17 Tenn.App. 627, 69 S.W. (2d) 902; Stanbery v. Johnson, 218 Iowa, 160, 254 N.W. Many operators of the modern, effi......
  • Request a trial to view additional results
18 cases
  • Owen v. Taylor, 6880
    • United States
    • United States State Supreme Court of Idaho
    • 29 Abril 1941
    ...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. Michigan--"Gross"--In re Mueller's Estate, 273 N......
  • Williamson v. McKenna
    • United States
    • Supreme Court of Oregon
    • 10 Agosto 1960
    ...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 In Vermont the guest statute (23 V.S.A. § 1491) includes the phrase 'gross or wilful negligence.' This is construed to mean conduct o......
  • Wright's Estate v. Pizel, Nos. 37743
    • United States
    • United States State Supreme Court of Kansas
    • 28 Enero 1950
    ...supra. This construction given to the statute has been followed and approved by our court in the following cases: Sayre v. Malcom, 139 Kan. 378, 379, 31 P.2d 8; Ewing v. Edwards, 140 Kan. 325, 36 P.2d 1021; Aduddell v. Brighton, 141 Kan. 617, 619, 42 P.2d 555; Anderson v. Anderson, 142 Kan.......
  • Gallegher v. Davis
    • United States
    • Superior Court of Delaware
    • 13 Enero 1936
    ...rise to an action under the statute, 45 C.J. 678; Lee v. Lott, supra; Bobich v. Rogers, 258 Mich. 343, 241 N.W. 854; Sayre v. Malcom, 139 Kan. 378, 31 P. (2d) 8; Fly v. Swink, 17 Tenn.App. 627, 69 S.W. (2d) 902; Stanbery v. Johnson, 218 Iowa, 160, 254 N.W. Many operators of the modern, effi......
  • Request a trial to view additional results

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