Vaughn v. Murray

• Decision Date: 06 April 1974
• Docket Number: No. 47236,47236
• Citation: 521 P.2d 262,214 Kan. 456
• Parties: Gene L. VAUGHN, Appellant, v. Gary G. MURRAY, Appellee, and Lloyd L. Featherston, Appellee and Cross-Appellant.
• Court: Kansas Supreme Court

Page 262

521 P.2d 262

214 Kan. 456

Gene L. VAUGHN, Appellant, v. Gary G. MURRAY, Appellee, and Lloyd L. Featherston, Appellee and Cross-Appellant.

No. 47236.

Supreme Court of Kansas.

April 6, 1974.

Syllabus by the Court

1. A summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and admissions on file show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. But in considering a motion for summary judgment the movant's adversary is entitled to the benefit of all reasonable inferences that may be drawn from the facts under consideration.

2. Normally, the presence or the absence of negligence in any degree is not subject to determination by the court on summary judgment, for such a determination should be left to the trier of the facts. It is only when it can be said that reasonable men cannot reach differing conclusions from the same evidence that the issue may be decided as a question of law.

3. Proof of a willingness to injure is not necessary in establishing gross and wanton negligence. This is true because a wanton act is something more than ordinary negligence but it is something less than willful injury. To constitute wantonness the act must indicate a realization of the imminence of danger and a reckless disregard or a complete indifference or an unconcern for the probable consequences of the wrongful act.

4. A constitutional challenge to a legislative act will not be entertained on appeal to this court unless the challenge has been alleged in the pleadings or presented to the trial court, absent some compelling state interest.

5. Under both K.S.A. 60-2103(h) and its predecessor, G.S.1949, 60-3314, it has been held that a cross-appellee may obtain a review of all rulings adverse to him, interlocutory or otherwise, when such rulings may on remand affect the subsequent course of the proceedings. It is, of course, necessary that a cross-appeal be perfected in order for an appellee to obtain a review of such rulings.

6. As a matter of constitutional law, it can safely be said, retroactive operation of an overruling decision is neither required nor prohibited.

7. The law as declared in the overruling decision of Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (No. 47,101 opinion filed January 26, 1974) (holding Kansas guest statute unconstitutional) shall be given retroactive application to all similar cases pending in the courts of this state on January 26, 1974, and to cases filed thereafter regardless of when the causes of action accrued with the following exception: When a judgment or a verdict has been entered in a district court prior to January 26, 1974, and the same is free of reversible error under the law then existing, the law as declared in Henry v. Bauder, supra, shall not apply unless the constitutional question decided in the overruling decision has been timely presented to the trial court.

8. As a corollary to this rule limiting the retroactive effect of Henry v. Bauder, supra, it follows that if a judgment or verdict entered prior to January 26, 1974, is thereafter set aside on proper motion in the district court or reversed on appeal because of reversible error under the prior law any trial conducted thereafter shall be governed by the law as now declared in the overruling decision, Henry v. Bauder, supra.

9. The record on appeal is examined on a claim by a guest passenger against a host driver which claim accrued prior to January 26, 1974, and it is held, under the rule declared in Syl. 7 and 8 above, summary judgment rendered prior to January 26, 1974, in favor of the driver is in error under the law then existing and the claim is remanded for trial under the law as now declared in the overruling decision, Henry v. Bauder, supra.

U. M. Hoover, Overland Park, argued the cause and was on the brief for appellant.

Fred N. Six, of Barber, Emerson, Six, Springer & Zinn, Lawrence, argued the cause, and Thomas V. Murray, Lawrence, was with him on the brief for appellee.

J. H. Eschmann, of Ascough, Bausch & Eschmann, Topeka, argued the cause, and Eugene C. Riling, of Riling, Riling & Burkhead, Lawrence, was with him on the brief for appellee and cross-appellant.

FROMME, Justice:

This action was brought by a passenger (Gene L. Vaughn) against the owner-operator of an automobile (Gary G. Murray) and against the owner of a cow (Lloyd L. Featherston). The cow wandered onto a county road during the nighttime and was struck by the automobile. Summary judgment was entered in favor of the owneroperator of the automobile as against the passenger. A motion for summary judgment by the owner of the cow as against the passenger was denied. The passenger appeals from the summary judgment in favor of the driver. The owner of the cow cross-appeals from the order denying summary judgment against the passenger.

The appeal and cross-appeal were pending in this court on January 26, 1974, when the Kansas guest statute, K.S.A. 8-122b, was held unconstitutional and void as a denial of equal protection of the law under the Fourteenth Amendment to the United States Constitution and Sections 1 and 2 of the Kansas Bill of Rights for the reason that the classifications provided in that statute are arbitrary and discriminatory and have no rational basis. See Henry v Bauder, 213 Kan. 751, 518 P.2d 362 (No. 47,101 opinion filed January 26, 1974).

It will therefore become necessary in the course of this opinion to determine the retroactive effect, if any, to be given the overruling decision of Henry v. Bauder, supra, in light of the facts and circumstances of the present case. This action accrued October 8, 1971. The summary judgment appealed was entered March 28, 1973. Notice of appeal was filed April 16, 1973. The overruling decision, Henry v. Bauder, supra, was filed January 26, 1974. We will first examine the points raised on the appeal and cross-appeal and then discuss the question of the retroactive-prospective application of the overruling decision.

The appellant contends it was error for the trial court on summary judgment to determine as a matter of law that the owner-operator of the automobile could not be found guilty of gross and wanton negligence. The court's decision was made on the basis of the pleadings and the depositions of the passenger and of the owner-operator, from which the following account of the accident can be fairly deduced.

A wedding and reception were held at a rural church located on county road #1029 in Douglas County on the evening of October 8, 1971. The bridegroom was a brother of the driver, Murray, and a friend of the passenger Vaughn. The bride and groom took leave of the festive occasion shortly before 10:00 o'clock p. m. They headed south in the groom's car on county road #1029. As usually happens they were vigorously pursued by some of their well-meaning friends. Defendant Murray, brother of the groom, used his car for the pursuit and he was accompanied on the chase by the plaintiff, Vaughn, and several other friends. It was dark when the chase began. The road they traveled was paved, dry, hilly and had a maximum speed limit of 50 miles per hour (mph). Prior to the day of the accident the driver, Murray, had seen cattle on the road in this same area. The passenger Vaughn had seen cows on this roadway on frequent occasions. The defendant Murray drove his car at speeds between 90 and 100 mph in violation of the posted speed limit in a vain effort to overtake the bride and groom. He crested a hill and saw the car ahead swerve 4 or 5 feet from a straight line of travel. He proceeded with speed unchecked until he saw a cow standing in the roadway 450 yards ahead. Brakes were applied but the car collided with the cow and injuries resulted. At no time during the 2 or 3 mile chase did the passenger Vaughn ask the driver Murray to slow his speed. The occupants of the car were laughing and having a good time until the accident occurred. The parties lived in this neighborhood and were familiar with the road.

The trial court, after reviewing some of our decisions and much of the deposition testimony, stated that the facts were not disputed and, when the facts were taken as true, it could not be reasonably determined that the defendant Murray was guilty of gross and wanton negligence. In further support of the summary judgment the court said that although plaintiff claimed discovery of evidence was not complete he made no suggestion of additional facts tending to support gross and wanton conduct. The driver's motion for summary judgment was sustained.

Although the question is not without difficulty we believe the trial court erred in entering summary judgment.

A summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and admissions on file show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (K.S.A. 60-256(c).) But in considering a motion for summary judgment the movant's adversary is entitled to the benefit of all reasonable inferences that may be drawn from the facts under consideration. (Rothwell v. Transmeier, 206 Kan. 199, syl. 3, 477 P.2d 960.) Normally, the presence or the absence of negligence in any degree is not subject to determination by the court on summary judgment, for such a determination should be left to the trier of the facts. It is only when it can be said that reasonable men cannot reach differing conclusions from the same evidence that the issue may be decided as a question of law. (Abston v. Medora Grain, Inc., 206 Kan. 727, 735, 482 P.2d 692.) So in the present case if we are to affirm the summary judgment entered by the trial court in favor of the driver we must be able to say on the record before us that the probability of proving gross and wanton negligence is excluded.

Two things were streesed by the trial court in reaching its...