Wright's Estate, In re

• Decision Date: 10 March 1951
• Docket Number: No. 38129,38129
• Citation: 228 P.2d 911,170 Kan. 600
• Parties: In re WRIGHT'S ESTATE. PIZEL et ux. v. WRIGHT.
• Court: Kansas Supreme Court

Page 911

228 P.2d 911

170 Kan. 600

In re WRIGHT'S ESTATE PIZEL et ux. v. WRIGHT.

No. 38129.

Supreme Court of Kansas.

March 10, 1951.

Rehearing Denied April 12, 1951.

Syllabus by the Court.

1. In order for one to recover for an injury or for his representative to recover for a wrongful death occasioned while being transported in the motor vehicle of another, to avoid the limitations of our guest statute, it must be affirmatively shown that he was not a guest, that he was being transported for 'payment', or that injury or death was caused by gross and wanton negligence of the operator of the vehicle.

2. Where a young child who has been left by his parents in the unrestricted care and custody of another person, is taken on an automobile trip by such person, and is Killed in an accident while on the trip, the child is to be considered a 'guest' within the meaning of the Kansas guest statute (G.S.1949, 8-122b) which limits the liability of the automobile owner or operator in case of injury to passengers who are riding as 'guests without payment for transportation'. Following Morgan v. Anderson, 149 Kan. 814, 89 P.2d 866.

3. Within the meaning of the guest statute (G.S.1949, 8-122b) 'payment' for transportation sufficient to preclude classification of one riding in a car 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. Following Sparks v. Getz, 170 Kan. 287, 225 P.2d 106; Srajer v. Schwartzman, 164 Kan. 241, 188 P.2d 971, and prior decisions.

4. To recover damages for wrongful death under G.S.1949, 8-122b, the petition must allege and the evidence must show that the host's conscious conduct indicated reckless disregard and complete indifference and unconcern for the probable consequences of his wrongful act, and where the evidence fails in this respect, a demurrer thereto must be sustained. Following Bailey v. Resner, 168 Kan. 439, 214 P.2d 323.

A. W. Relihan, Smith Center, argued the cause, and Terry E. Relihan and T. D. Relihan, Smith Center, were with him on the briefs, for appellants.

H. G. Engleman, Salina, argued the cause, and LaRue Royce, E. S. Hampton, H. H. Dunham, Jr., and John Q. Royce, Salina, were with him on the briefs for appellee.

WERTZ, Justice.

This is an action for damages for wrongful death brought by Herbert C. Pizel and Marjorie M. Pizel as the parents and next of kin of their deceased minor son, Donald Lee Pizel, against the estates of Raymond C. Wright and Ida Loraine Wright, grandparents of said decedent, both of whom were killed in the accident which took the life of their grandson. The probate court allowed the claim and an appeal was taken to the district court, where defendant's demurrer to the evidence was sustained by the court, and judgment entered against appellants. This case has been before this court before, Wright's Estate v. Pizel, 168 Kan. 493, 214 P.2d 328, on the sole question of constitutionality of the guest statute, and the statute was held to be a proper exercise of the state's police power.

In their petition appellants alleged, in addition to the facts set forth in the opinion in this case referred to above, that they are the father and mother of Donald Lee Pizel, deceased; that W. L. Wright is the qualified and acting administrator of the estate of Raymond C. Wright and Ida Loraine Wright, both deceased, and the pertinent part of the petition, being paragraph five thereof, reads as follows: 'That on the 4th day of January, 1948, at about ten o'clock in the morning, the same being a bright, clear day with the sun shining and no wind blowing and no other obstruction to the hearing or sight of one about to cross said crossing; the said Raymond C. Wright, who then and there owned an automobile and was driving the same from said Kanorado Airport to his home, which was located about four miles north of said Airport and crossing or thereabout, having as his passengers and riding with him Ida Loraine Wright, Ronald Lee Pizel, and Donald Lee Pizel and while so driving said car at an ordinary rate of speed, it being necessary for him to drive over said railroad track and crossing to reach his home, and while so approaching said crossing there was a freight train approaching the same from the west at a high rate of speed being pulled by a diesel freight engine and hauling a large number of freight cars; that the horn or whistle of said engine was being sounded and the bell thereon was ringing and the train was making a great noise and all was plainly visible to the said Raymond C. Wright and Ida Loraine Wright; that there were no other cars or vehicles at or near said crossing at said time; that the said Raymond C. Wright had actual notice of the danger of trying to cross said crossing ahead of said train; and knew and had actual knowledge that said train was approaching said crossing; that he knew he could not cross ahead of said train or while it was passing said crossing without inflicting serious injury or death upon the said Donald Lee Pizel; that he knew when he was at least seven or eight hundred feet from the said crossing that the train was approaching and that he could not proceed towards the same without imminent peril to the said Donald Lee Pizel and while fully conscious of all such facts above set forth, he intentionally drove his car, occupied as aforesaid, onto said track in such a manner that the car was run into and over and completely demolished, all with a reckless disregard to the consequences of his acts and as a direct and proximate result of each and all thereof the said Donald Lee Pizel was injured and from injuries he died.'

The petition continues with a prayer for recovery for the wrongful death of Donald Lee Pizel, by reason of the reckless and wanton negligence of Raymond C. and Ida Loraine Wright, now deceased.

Appellee, administrator of the estate of Raymond C. and Ida Loraine Wright, filed his answer containing a general denial and a specific denial that the oncoming train was known to or visible to Raymond C. and Ida Loraine Wright, that they had actual notice of the danger in attempting to cross said crossing ahead of the train, that they knew or had actual knowledge that any train was then approaching said crossing, or that they intentionally drove their car onto the railroad track in reckless disregard of the consequences; and alleged that Donald Lee Pizel was at the time and place the guest of Raymond C. and Ida Loraine Wright and was being transported with them in the automobile driven by Raymond C. Wright who was not guilty of gross and wanton negligence in the operation of said automobile, and that the petitioners, as parents of said child, have no cause of action herein by reason of the provisions of G.S.1949, 8-122b.

Appellants by way of reply denied all the allegations of the answer and specifically denied that the deceased Donald Lee Pizel was a guest of Raymond C. Wright by virtue of the mentioned statute.

Briefly, these are the facts herein: On January 4, 1948, the mothers and wives of the Flying Farmers living in the vicinity of Kanorado were preparing a breakfast at a church in that town; the deceased, Mrs. Ida Loraine Wright, was one of a committee to assist in preparation of the breakfast; she had assisted at the church on the previous day and was expected to help on the day of the fatal accident. On the morning in question, the deceased Raymond C. Wright had a conversation with his wife, Ida Loraine Wright, in which he told her he would just as soon she did not go to the church to work and asked her to call Marjorie Pizel, their daughter and mother of the twin boys, and see if she would work in her place. This resulted in the telephone conversation wherein Mrs. Ida Loraine Wright called her daughter, Marjorie Pizel, and told her if she would work in her place at the church and serve that morning, to bring the twins over and she would take care of them for her. Subsequent thereto, the children were delivered by their mother to the grandparents' home and placed in the custody of Mrs. Wright. Later the same morning Mr. Wright took them in his car to the airport where they remained for a short time and then started to return to the Wright farm home. In returning to their home it was necessary for them to cross a Rock Island railroad crossing and tracks at a point a short distance east and north of the airport. Mr. Wright drove his automobile from the airport to U. S. Highway 24 which runs east and west and parallel with the Rock Island railroad tracks and drove a short distance to the highway which runs north and which is intersected by the railroad tracks about 124 feet north of Highway 24. They turned north at this point and proceeded toward the railroad crossing which is about 1/4 mile east of the airport. It was a clear day and there was nothing to obstruct the view of Mr. Wright as to the railroad tracks or the train which was approaching. As Wright left the airport in his automobile, there was a freight train approaching the crossing from the west. This train was being pulled by a Diesel engine equipped with bell and air whistle on both the front and rear of the engine, which equipment was in operation and working. There are four railroad crossings in and about the depot at Kanorado and the whistle of the freight was being sounded almost continuously down the stretch of track approaching the crossing in question. The train was traveling about 45 miles an hour; the engineer saw the Wright car at about the time the train passed the airport. The Wright car was then on Highway 24 going east. The engineer saw Wright turn north and approach the crossing; the train whistle was then blowing and the bell was ringing; the Wright car did not stop, but did appear to slow down, but continued and drove onto the track in front of the oncoming train. As a result...