Stout v. Gallemore

• Citation: 138 Kan. 385,26 P.2d 573
• Decision Date: 11 November 1933
• Docket Number: 31183.
• Parties: STOUT v. GALLEMORE. [*]
• Court: Kansas Supreme Court

26 P.2d 573

138 Kan. 385

STOUT v. GALLEMORE. ^[*]

No. 31183.

Supreme Court of Kansas

November 11, 1933

Syllabus by the Court.

Statute relieving automobile host from liability to gratuitous guest except for "gross and wanton negligence" uses quoted words in sense of wantonness as distinguished from negligence (Rev. St. Supp. 1931, 8--122b).

Use of word "reckless" may imply nothing more than negligence, or it may be descriptive term implying wantonness.

In gratuitous guest's action against host, jury's finding that host was guilty of gross and wanton negligence which consisted of driving recklessly and failure to have automobile under proper control held not finding that host was guilty of wantonness; hence host was not liable (Rev. St Supp. 1931, 8--122b).

1. The effect of our statute (R. S. Supp. 1931, 8--122b) is to relieve the operator of an automobile from liability to his guest resulting from negligence, as the term "negligence" is distinguished from "wantonness."

2. The use of the word "reckless" may imply nothing more than negligence, or it may be a descriptive term implying wantonness.

3. In an action by a guest against the operator of an automobile for damages sustained in an automobile casualty, the answers of the jury to special questions are examined, and it is held, they do not find the defendant guilty of wantonness.

Appeal from District Court, Cowley County; O. P. Fuller, Judge.

Action by Maude Stout against A. T. Gallemore. Judgment for plaintiff, and defendant appeals.

Judgment reversed, with directions.

BURCH and SMITH, JJ., dissenting.

Albert Faulconer, Kirke W. Dale, and C. L. Swarts, all of Arkansas City, and Douglas Hudson, of Fort Scott, for appellant.

W. L Cunningham, D. Arthur Walker, Fred G. Leach, and William E Cunningham, all of Arkansas City, for appellee.

HARVEY Justice.

This is an action by a guest against her host for damages because of personal injuries sustained in an automobile casualty which are alleged to have resulted from the defendant's gross and wanton negligence. The jury answered special questions and returned a general verdict for plaintiff, on which judgment was rendered. Defendant has appealed and, among other things, contends that upon the record, and especially upon the special findings of the jury, plaintiff is not entitled to recover.

The pertinent facts may be stated briefly as follows: Plaintiff is a widow, and she and her grown daughter and a sister make their home together at Arkansas City. She kept the house and looked after some rooms and conducted a private kindergarten class for pre-school children. Defendant is a widower and lives alone except for the occasional week-end visits of one of his adult daughters. In the yard at the rear of his residence he has a rose garden in which he takes much interest. The parties met for the first time one afternoon in September, 1931, at the home of Mrs. Porter, a mutual friend where plaintiff had gone to take some books Mrs. Porter desired to read, and defendant had gone to take Mrs. Porter a bouquet of roses. They were introduced by Mrs. Porter, and they all visited perhaps twenty minutes, talking of books and roses. When defendant started to leave, Mrs. Porter asked defendant to take plaintiff to her home, several blocks away, and he consented to do so. Plaintiff was a lover of roses and defendant invited her to go by his rose garden, which they did. Defendant invited her to drive with him to Winfield, a distance of about fifteen miles, for dinner. They first went to plaintiff's home and then started for Winfield a little after 5 o'clock. As they neared Winfield defendant suggested that they drive to Wellington, about twenty-five miles farther, to take dinner at a well-known hotel. Plaintiff consented and they drove to Wellington, where they had dinner, leaving the hotel about 8 o'clock. They then drove through the park at Wellington, then to a filling station, where they stopped a few minutes, then to the residence of defendant's brother, where they stopped a few minutes but did not go in, and then to the main street of Wellington, where they stopped for a time in front of a drug store and were served refreshments. They differ as to the time they left Wellington. Plaintiff thought it was about 11 o'clock, and she was embarrassed by the long wait in the car at the stops, particularly on Main street. Defendant thought they left Wellington about 9 o'clock. At any rate, they started back to Arkansas City, passed through Winfield about midnight, and were near the town of Hackney. They were traveling on an improved highway, which had an eighteen-foot pavement. Defendant had requested that plaintiff write on his blank check book, which he furnished her for that purpose, her telephone number, which was in the name of her sister, and the sister's name and address. Plaintiff was complying with his request and in doing so had leaned forward so she could see to write by the dash light. While she was doing so the car struck the abutment of a cement culvert. Plaintiff was thrown forward. Her head struck the windshield with sufficient force to break it. Her jaw was broken, and she sustained other painful injuries about the face, neck, and other portions of her body.

The parties differ as to just how the collision with the culvert came about. Plaintiff testified that in returning from Wellington defendant undertook to make love to her; that on four different occasions before the casualty defendant had attempted to put his arm about her; that she had declined to permit it, and rebuked him for attempting it; that when about a quarter or half a mile from the culvert defendant had requested her to write her telephone number and address on a slip of paper which he furnished her, and although reluctant to do so she had consented. "When I leaned over to write the number down in the book under the dash light he grabbed me and tried to kiss me and hug me. Then we crashed into the bridge." At that time she thought they were traveling at about 40 to 45 miles per hour. Perhaps her testimony in these respects was affected somewhat by that of the mechanic who repaired the car and who said in his opinion, judging from the damage to the car, that it was traveling at about 15 miles per hour when it struck the culvert, and further by the testimony of the editor of one of the newspapers at Arkansas City to the effect that soon after this action was commenced plaintiff called at his office and stated that the other newspaper had not printed the story correctly. "*** She came in and told me that it was wrong in the [other newspaper]; that they had had an accident but it was wrong about the embracing, that Mr. Gallemore drove recklessly but he hadn't tried to embrace her. ***"

Defendant's testimony was to this effect: That plaintiff had permitted him to kiss her while they were in the rose garden at Arkansas City and several times while they were driving to Wellington; that when they started back from Wellington he laid his arm back on the seat and she permitted him to embrace her all the way except when they went through town; that they had talked of going to Wichita in a few days, where he had business, and he had asked her to accompany him and to go to a show with him in the evening, and she had consented; that since the telephone where she lived was in the name of her sister, he desired her sister's name and address and telephone number in order that he might call, and that he handed her his blank check book on which to write; that perhaps half a mile before the car struck the culvert he had released her from his embrace so that she could give her attention to writing, and she had leaned forward to use the dash light and to look through the book for a place to write, and was writing; that while she was doing so he met two cars, the second of which had exceptionally bright lights; that just after passing that car a man stepped into the highway from the right-hand side directly in front of his car; that he turned his car to the left in order to miss him; that the man then stepped across to the left side of the pavement and had something in his hand, which he seemed to wave; that he then turned his car sharply to the right in order to avoid striking the man, when the car struck the culvert; that while he did not remember distinctly whether he had applied his brakes, when he later looked he saw that the wheels of his car had dragged as much as six to ten feet.

While the testimony of the parties differs somewhat in detail, it is clear from that of both of them that each was appreciative of the acquaintance of the other, and that they were mutually enjoying the evening ride. Directly after the collision defendant expressed sorrow at plaintiff's injuries. He stopped a passing automobilist, who called from a farm house nearby for an ambulance. Defendant accompanied plaintiff to the hospital. He had been shaken up, but not seriously injured. Plaintiff, however, had the serious injuries heretofore mentioned. She was compelled to remain at the hospital for several weeks, and had not thoroughly recovered at the time of the trial. Defendant testified that he had driven very slowly after leaving Wellington and at the time his car collided with the culvert was going about fifteen miles per hour. Perhaps his testimony with reference to seeing the man in the highway and his efforts to dodge him was weakened by the fact that he first told it several hours after the casualty and there were some discrepancies in it as it was told by him on different occasions.

In answer to special questions the jury found that plaintiff had been riding with defendant about seven hours prior to the accident; that they had driven about 75 miles that evening that as t...