Thomas v. Hughes

• Decision Date: 22 January 1955
• Docket Number: No. 39565,39565
• Citation: 279 P.2d 286,177 Kan. 347
• Parties: , 65 A.L.R.2d 306 Bert THOMAS, Appellant, v. Harry HUGHES, a sole proprietor doing business as Hughes Sales & Service, Appellee.
• Court: Kansas Supreme Court

Page 286

279 P.2d 286

177 Kan. 347, 65 A.L.R.2d 306

Bert THOMAS, Appellant, v. Harry HUGHES, a sole proprietor doing business as Hughes

Sales & Service, Appellee.

No. 39565.

Supreme Court of Kansas.

Jan. 22, 1955.

Rehearing Denied March 11, 1955.

Syllabus by the Court.

In an action to recover for personal injuries sustained in an automobile collision, the amended petition alleged substantially the following:

Plaintiff, the general manager of a corporation, purchased a new automobile for his employer from defendant automobile dealer. As part of the consideration defendant orally agreed to make the customary periodic mechanical 'check-ups' on the car. Two weeks later plaintiff took the car to defendant's garage for such a service 'check-up.' After servicing the car defendant's mechanic, who had worked on it, requested plaintiff to accompany him on a 'road test,' the purpose thereof being to assure defendant's mechanic that the car was in proper working order, and also to establish such fact in the mind of plaintiff. The two got in the car and started out, with the mechanic driving. A collision occurred and plaintiff was injured.

Held, under the facts alleged, plaintiff was not a 'guest', and the 'guest statute' G.S.1949, 8-122b has no application.

Further held, the demurrer to the amended petition, which stated a cause of action for ordinary negligence, was erroneously sustained.

Tom Harley, Jr., Wichita, Tom Harley, Wichita, and R. C. Woodward and H. P. Woodward, El Dorado, on the brief, for appellant.

Hugh P. Quinn, Wichita, Getto McDonald, William Tinker, Arthur W. Skaer, Jr., and William Porter, Wrichita, and O. J. Connell, Jr., El Dorado, on the brief, for appellee.

PRICE, Justice.

This is an action to recover for personal injuries sustained in an automobile collision.

The appeal is from an order sustaining a demurrer to the amended petition.

The sole question is whether, under the facts and circumstances disclosed by the allegations of the amended petition (hereafter referred to as the petition), plaintiff was a 'guest' within the purview of G.S.1949, 8-122b, which reads:

'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 damage 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.'

Plaintiff concedes the petition does not charge gross and wanton negligence, but contends that as he was not a guest at the time and place in question, his allegations of ordinary negligence are sufficient to state a cause of action.

Defendant concedes the petition states a cause of action for ordinary negligence, but contends that as plaintiff was a guest, such allegations of ordinary negligence are insufficient to state a cause of action.

And, so the question is squarely presented--was plaintiff a guest, or was he not?

If he was, the demurrer was properly sustained; if he was not, it should have been overruled.

In the interest of accuracy, rather than attempt to summarize the allegations of the petition, pertinent portions thereof will be set out in full. They read:

'(2) That said defendant Harry Hughes is an individual doing business under the firm name of Hughes Sales and Service with its principal place of business being at El Dorado, Kansas; said business consisting of selling automobiles and operating a garage in connection with said business.

'(3) That at all times mentioned herein and plaintiff was the general manager of National Termite Control Inc., a corporation organized under the laws of the State of Kansas, with its principal place of business being the city of Wichita, Kansas.

'(4) That on or about the 23rd day of May, 1952, said plaintiff as general manager of said National Termite Control, Inc., purchased for said corporation from said defendant a certain 1952 Hudson Hornet 4-door Sedan, Motor No. 162308; that in connection with said sale and as a part of the consideration thereof and as an inducement to purchase said automobile, said defendant orally agreed with said plaintiff to furnish said automobile with certain mechanical check-ups which are a regular service furnished by said defendant to the purchasers of new automobiles from said defendant.

'(5) That on or about the 6th day of June, 1952, said plaintiff drove said automobile to the place of business of said defendant, located at El Dorado, Kansas, for the purpose of having said defendant make a service check-up on said automobile as per his oral agreement. That said defendant then and there received and accepted said automobile for said purpose and directed one Lewis B. King, who at all times mentioned herein was an agent, servant and employee of said defendant and hereinafter referred to as King, to make such check-up on said automobile; that King then made such check-up on said automobile at said defendant's place of business and made certain minor adjustments; that at approximately 3:00 p. m. on said day, as part of said check-up and while acting within the scope of his employment, said King was going to take said automobile out into the country for a road test and before leaving said defendant's place of business, King requested said plaintiff to accompany him on such road test in order that said plaintiff might discover and learn for himself how such automobile performed after said check-up and minor adjustments had been made. That said plaintiff, pursuant to said request, entered said automobile, sat on the righthand side of the front seat and accompanied said King on said road test. The said trip was made for the joint benefit and advantage of said defendant and of said plaintiff, in that it was made so that the defendant might show to the plaintiff, and plaintiff might have the opportunity to ascertain, that defendant had fully complied with his contract and obligation to make the check-up and necessary adjustments to said automobile as provided for by the original contract of sale.

'(6) That said King drove said automobile south of the city of El Dorado, Kansas, on Highway 54, to what is commonly called and referred to as the airport road, which is a blacktop road running east and west and located approximately 2 miles south of the city of El Dorado, Kansas. That said King turned left on said road and proceeded east thereon a distance of approximately 2 miles to a north and south gravel road which intersected said airport road. That during the time of said road test said King drove said automobile at various speeds not exceeding 40 miles per hour until just prior to reaching the intersection of said north and south road, the exact distance being unknown to plaintiff, then said King accelerated the speed of said automobile to approximately 90 miles per hour. That when said plaintiff observed the rate of speed that said King was driving said automobile, he started to caution said King to slow down but before he could give such warning he saw an automobile approaching said intersection on said north and south road from the north and headed south toward said intersection, said approaching automobile being driven by one Kenneth Schmidt, a resident of Butler County, Kansas; that at the time said plaintiff first observed the automobile driven by said Kenneth Schmidt, it was approximately 40 to 50 yards north of the intersection and the automobile in which plaintiff was riding was approximately 50 to 60 yards west of said intersection. That upon seeing the approach of the automobile driven by said Kenneth Schmidt, said plaintiff cried out a warning to said King; that said King attempted to stop said automobile which he was driving but was unable so to do and the automobile in which said plaintiff was riding ran into and collided with the center right side of the automobile driven by said Kenneth Schmidt.

'(7) That at the time in question, the day was clear, the surfaces of both of said roads were dry and there were no obstacles on or along the roads in question which obstructed the view of said King to interfere with or obscure a view of the automobile driven by said Kenneth Schmidt approaching said intersection; that at the time in question said airport road was an unmarked highway and there were no stop signs at said intersection.

'(8) That said road test was conducted entirely...