Van Royen v. Osborn, 40328
| Decision Date | 06 April 1957 |
| Docket Number | No. 40328,40328 |
| Citation | 309 P.2d 630,181 Kan. 39 |
| Parties | Enos VAN ROYEN, Appellee, v. Fred OSBORN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In considering a pleading attacked by demurrer, strict construction will apply only to those allegations assailed by a previous successfully resisted meritorious motion to make definite and certain.
2. The petition examined in an action for damages for personal injuries received while an employee was being transported by his employer to answer charges for driving an overloaded truck while acting under the directions of the employer and it is held, the trial court properly overruled a demurrer to the petition.
3. Under circumstances set out in the preceding paragraph the petition disclosed that the relationship of employer and employee existed and the action alleged was not one of guest relationship. (G.S.1949, 8-122b.)
Laurence M. Turner, Moline, argued the cause, and Darrel H. Vinette, and Katheryn S. Tarwater, Howard, were with him on the briefs for appellant.
Richard W. Moss, El Dorado, argued the cause, and William E. Cunningham and William R. Howard, Arkansas City, were with him on the briefs for appellee.
This is an appeal from an order of the trial court overruling appellant's demurrer to appellee's petition.
The petition substantially stated that on April 22, 1953, appellee was in appellant's employ as a truck driver. He was sent to Wichita in appellant's truck to pick up a load of canned oil and sacked feed and to return to appellant's place of business in Elk Falls with the load. On the return trip the state highway patrol gave appellee a summons to appear before a justice of the peace in Augusta at 8:00 p. m. on April 23, 1953, because the truck was overloaded. Appellee drove on to Elk Falls and notified appellant, his employer, of the circumstance. Appellant ordered appellee to be ready to attend the court of the justice of the peace in appellant's company and appellant would furnish transportation to Augusta. Pursuant to the above instructions appellee met appellant and they started driving to Augusta in appellant's automobile. Appellee sat on appellant's right and on appellee's right was Thomas S. Baughman who went along. All three were in the front seat. As they proceeded west on highway 96 toward Augusta at about 7:40 p. m. on April 23, 1953, it was dark and raining; the blacktop was slick and visibility was poor; appellant was driving in excess of seventy miles per hour; approximately eight miles west of Leon appellant, while driving in a negligent, careless, reckless and willful manner at an extremely high and dangerous rate of speed, crashed into the rear of a Plymouth automobile stalled on the highway. The taillights of the automobile were burning at the time and the owner of said automobile stood at the rear thereof flagging traffic with a lighted flashlight.
As a result of the collision, appellee was severely and permanently injured, which injuries were directly due to and were proximately caused by appellant's active and positive negligence. It was further alleged that prior to the collision appellee was healthy, robust, active, and able-bodied and he earned $45 a week as a truck driver in appellant's employ. Appellee's injuries were described. They resulted in the hospitalization of appellee and required continuing medical attention. They had caused him tempoary and permanent pain and suffering and temporary and permanent disability. Appellee was off work for forty-seven weeks and had lost earnings of $2,115.00. His doctor and hospital bills totaled $410.74 and future damages of like character would be in the sum of $15,000. All these items totaled $17,525.74.
There was a motion to strike portions of the petition and to make those portions thereof pertaining to the elements of damages, definite and certain. This motion was overruled in its entirety and appellant filed a general demurrer to the petition, which was also overruled by the trial court, and appellant appealed.
Appellant contended in the court below, and likewise contends on appeal, that he is entitled to strict construction of the petition by reason of the previous motion to strike and make definite and certain and that the petition shows on its face that appellee was a guest in appellant's automobile and, as a matter of law, he cannot recover because of our guest statute, 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 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.'
It is conceded there is no question of gross or...
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