Srajer v. Schwartzman

• Decision Date: 24 January 1948
• Docket Number: 36969.
• Citation: 164 Kan. 241,188 P.2d 971
• Parties: SRAJER v. SCHWARTZMAN.
• Court: Kansas Supreme Court

188 P.2d 971

164 Kan. 241

SRAJER v. SCHWARTZMAN.

No. 36969.

Supreme Court of Kansas

January 24, 1948

Rehearing Denied March 13, 1948.

Appeal from District Court, Marion County; James P. Coleman, Judge.

Wrongful death action by Otillia M. Srajer, administratrix of the estate of Frank W. Srajer, deceased, against Joe Schwartzman sometimes written as Joseph Schwartzman. From an adverse order, plaintiff appeals.

Syllabus by the Court.

1. In testing the sufficiency of evidence, challenged by demurrer consideration is given only to the evidence favorable to the party adducing it, including all reasonable inferences to be drawn therefrom.

2. Within the meaning of the guest statute, G.S.1935, 8-122b 'payment' for the transportation sufficient to preclude classification of the passenger as a 'guest' need not be a payment in money, but it must constitute a benefit or advantage to the owner or operator which is a substantial consideration, motivating and not merely incidental in character.

3. 'Gross and wanton negligence' within the meaning of such statute means wantonless, or wilful and wanton conduct. There must be a realization that danger of injury to another is imminent, and conduct indicating an indifference to whether such injury results.

4. Record in an action to recover damages for wrongful death in an automobile accident examined and held: (a) the person for whose death recovery of damages was sought was a guest passenger, no evidence having been adduced showing, or tending to show, 'payment for such transportation' within the meaning of the guest statute; (b) plaintiff's evidence did not show or tend to show 'gross and wanton negligence' within the meaning of such statute; (c) such evidence did not establish a cause of action against the defendant for failure to render aid and assistance to the guest passenger fatally injured in the accident; (d) the trial court did not err in sustaining defendant's demurrer to plaintiff's evidence or in denying plaintiff's motion for a new trial.

John E. Wheeler, of Marion, for appellant.

George B. Powers, of Wichita, and Kenneth L. Hodge, of McPherson (Robert C. Foulston, George Siefkin, Andrew F. Schoeppel, Samuel E. Bartlett and George B. Powers, all of Wichita, and Braden C. Johnston, of Marion, on the brief), for appellee.

HOCH Justice.

This was an action by a widow to recover damages for the wrongful death of her husband in an automobile accident. He and another man were riding in a coupe being driven by the defendant when the accident occurred. The plaintiff appeals from orders sustaining a demurrer to her evidence and overruling her motion for a new trial. Her principal contentions are that the trial court erred, first, in holding that there was no evidence indicating a joint venture as to use of defendant's car; that the guest statute, G.S.1935, 8-122b, was applicable and that no 'gross and wanton negligence' was shown; second: In refusing to reopen the case for additional testimony; third: In admitting and in excluding certain evidence.

The fatal accident which occurred on November 24, 1944, was witnessed, so far as the record shows, only by the three occupants of the car, the defendant, Joe Schwartzman, Frank Srajer (deceased), and a man named Ucker. At the time of the accident the car was proceeding northward a few miles northeast of Ramona, Kansas. After the accident, the car was found in the ditch on the west side of the road lying on its side some distance north of a concrete bridge and apparently had collided with a concrete railing on the west side of the bridge. The deceased, Frank W. Srajer, was in the wrecked car and appeared to be dead when the first witnesses arrived after the accident. In a deposition admitted upon the hearing on the motion for a new trial, Earl Ucker, the third occupant of the car, stated that he was sitting on the outside and Srajer was sitting in the middle, while the defendant Joe Schwartzman was driving. Both Schwartzman and Ucker were injured and Ucker was taken to the hospital for treatment by the ambulance which arrived from Herington some time after the accident.

In her petition, plaintiff alleged that the highway and bridge in question were broad and in good condition for travel and that the defendant was familiar with the road and the bridge; that some time prior to the accident the defendant and the deceased entered into a verbal business arrangement for the transportation of some cattle by truck from their farms in what is commonly known as a 'mixed load of cattle'; that they had agreed to this arrangement for the purpose of trucking their cattle to the Herington Sales Pavilion for their mutual benefit in the cost of transporting the cattle and for the purpose of effecting a sale of the cattle; that in pursuance of this oral contract they did load a mixed load of cattle into a truck owned and operated by Ted Haefner and that after the cattle were loaded and for the purpose of supervising the division and sale of their cattle at Herington and for the purpose of arriving at the sales pavilion, they got into a coupe owned and operated by the defendant; that for the purpose of further carrying out the oral arrangement, the defendant agreed to convey Srajer in his car from Srajer's farm to Herington and that by reason thereof, the defendant benefited in that he was able to and did thereby secure a cheaper rate for trucking his cattle to Herington; that after Srajer took passage in defendant's coupe, which was then being operated by and under the control of the defendant, the defendant 'who was then and there under the influence of intoxicating liquor' and while he was so intoxicated as to be unable to properly operate said automobile 'did willfully, wantonly and recklessly, and with an indifference to consequences' drive the car at an excessive speed, namely between 60 and 70 miles an hour, and that at all times pertinent hereto defendant 'was not maintaining or keeping a proper lookout', and that while so driving his car willfully, wantonly and carelessly and while in an intoxicated condition and without keeping a proper lookout, he ran the car into the west side of the concrete railing on the bridge 'when he saw and could have seen the bridge'; that the defendant was driving the car at such a fast and dangerous rate of speed that when it collided with the bridge it rolled over and over along the west side of the road for a distance of 105 feet colliding with and sheering off a cottonwood tree, and then rolled an additional distance of between 25 and 40 feet into a hedge fence post tearing off the post and tearing down the fence; that as a result of said collision the car was completely demolished; that as a result of the operation of the car as heretofore stated, Srajer was thrown with great force and violence against the sides and top of the automobile receiving thereby wounds, cuts and contusions in and about his head, face, neck and body, and the severance of an artery; that Srajer was also internally injured, plaintiff being unable to state the exact nature thereof; that he bled profusely and suffered from the shock and that the defendant knew and it was apparent that Srajer was then in an unconscious condition from these injuries and was in need of the help of doctors and of hospitalization; that notwithstanding the critical condition of Srajer, the defendant willfully, wantonly, carelessly and negligently failed to render reasonable assistance to him; failed to make arrangements for taking Srajer to a physician or hospital for treatment and failed to summon a doctor or other person to care for Srajer although it was then apparent that such treatment was necessary in Srajer's unconscious and critical condition; that Srajer died as a result of this willful, wanton and negligent conduct on the part of the defendant. The prayer was for judgment in the sum of $10,000. In a second cause of action, plaintiff repeated substantially the allegations heretofore recited and prayed for judgment in the sum of $839.47 to cover funeral expenses. Defendant's answer consisted in the main of a general denial, with specific denial of any business arrangement between the deceased and the defendant, or that the defendant received any consideration for transporting the deceased. Defendant further averred that Srajer was riding in the car as a guest of the defendant and that negligent acts of the deceased directly contributed to and caused his death. In answer to the second cause of action the defendant alleged that since the maximum that could be allowed under Kansas statute for wrongful death is $10,000, plaintiff's action as to her second cause of action must fail. The reply was a general denial.

At the conclusion of plaintiff's evidence, defendant demurred. In ruling upon the demurrer the trial court properly gave first consideration to the question of the capacity in which the deceased was riding in defendant's car. The appellant contended and contends here that they were engaged in a joint venture or enterprise and that for that reason a showing of ordinary negligence was sufficient to take the case to the jury. The appellee's contention was and is that there was no showing of joint enterprise as to the transportation of the deceased in defendant's car; that the deceased was a guest passenger and that there was no showing of 'gross and wanton negligence' which is necessary to be shown in order to establish liability under the guest statute. G.S.1935, 8-122b. Commenting upon this question, the trial court said in part: '* * * If the deceased was not a guest and this was a joint enterprise then the question would arise as to whether or not a showing of ordinary negligence has been made. * * * The only testimony we have upon...