Wright's Estate v. Pizel

• Decision Date: 28 January 1950
• Docket Number: 37744,Nos. 37743,s. 37743
• Parties: WRIGHT'S ESTATE v. PIZEL et al. (two cases).
• Court: Kansas Supreme Court

Page 328

214 P.2d 328

168 Kan. 493

WRIGHT'S ESTATE v. PIZEL et al. (two cases).

Nos. 37743, 37744.

Supreme Court of Kansas.

Jan. 28, 1950.

Syllabus by the Court.

1. Upon the hearing of a motion by the district court to dismiss a demand against an estate, upon which testimony was heard by the probate court, such testimony cannot be considered to vary the allegations in the petition for the demand.

2. The effect of our statute, G.S.1935, 8-122b, is to relieve the operator of an automobile from liability to his guest resulting from negligence, as that term is distinguished from wantonness. Re-examining and approving our holding in Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573.

3. Our guest statute, G.S.1935, 8-122b, is a proper exercise of the police power of the state and does not violate section 18 of the Bill of Rights of our State Constitution.

E. S. Hampton, of Salina, argued the cause and Max Jones, of Goodland, and B. I. Litowich, LaRue Royce, H. H. Dunham, Jr., John Q. Royce, and H. G. Engleman, all of Salina, were with him on the briefs for the appellant in No. 37,743 and for the appellees in No. 37,744.

A. W. Relihan, of Smith Center, argued the cause, and T. D. Relihan, of Smith Center, was with him on the briefs for the appellees in No. 37,743 and for the appellant in No. 37,744.

The opinion of the court was delivered by

HARVEY, Chief Justice.

These appeals grew out of the same general facts, which may be summarized as follows: About 10:00 o'clock a. m. on January 4, 1948, Raymond C. Wright, who was driving his own automobile and who had as passengers riding with him his wife, Ida Lorane Wright, and his two grandsons, Ronald Lee Pizel and Donald Lee Pizel, four year old twins, drove across the Rock Island railway tracks near Kanorado and his car was struck by a train, with the result that Raymond C. Wright, Ida Lorane Wright and Ronald Lee Pizel were fatally injured and Ronald Lee Pizel was seriously, though not fatally, injured.

On January 27, 1948, W. C. Wright was duly appointed and qualified as administrator of the estate of Raymond C. Wright and Ida Lorane Wright. On June 24, 1948, Herbert L. Pizel and Marjorie Pizel, parents of Ronald Lee Pizel and Donald Lee Pizel, filed their petition in the probate court for damages for the wrongful death of Ronald Lee Pizel, in which, among other averments, were allegations tending to show that Raymond C. Wright was guilty of wanton conduct in driving upon the railroad tracks under the circumstances alleged. On the same day they filed a similar petition as next friends and on behalf of Donald Lee Pizel, seeking damages for his injuries. Upon a hearing in the probate court the claims were allowed in whole or in part and the administrator appealed to the district court.

In the district court the administrator filed a motion to disallow the respective claims upon the ground that G.S.1935, 8-122b prohibits any recovery; that the petitions showed that the respective minors were guests of Raymond C. Wright and that he was not guilty of gross and wanton negligence. The claimants filed a reply to the motion in which they alleged that G.S.1935, 8-122b is unconstitutional and void, being in violation of Section 18 of the Bill of Rights of the state of Kansas, and denied that the minors were guests of Raymond C. Wright at the time of the tragedy. In passing upon that motion the court held the statute, G.S.1935, 8-122b, is not unconstitutional, but further held that the petitions for the demands contained allegations tending to show wantonness of the driver of the car at the time of the tragedy, upon which question there should be a trial by jury.

From this ruling the administrator has appealed, and this is our case No. 37,743. In this court it is conceded that the petition filed in the probate court contains allegations tending to show wanton conduct of Raymond C. Wright at the time he drove over the railroad crossing. But it is pointed out that in the hearing before the probate court testimony was received which tended to counteract those allegations. Counsel for the administrator ask us to consider that evidence as in effect modifying the allegations of the petition to disallow the respective claims upon the hearing of their motions to dismiss the respective claims. We are not justified in doing that. Upon appeal from the probate court the matter is to be tried de novo in the district court. Whether the evidence introduced in probate court will be offered in district court is unknown, and if produced the effect upon the allegations of the petition is for the triers of fact in the district court.

The result is that the appeal in our No. 37,743 must be affirmed.

The administrator filed an answer to each petition in which he denied the facts alleged in the petitions tending to show wantonness and alleged that the minor children were guests of the driver, who was not guilty of gross and wanton negligence in the operation of the car, and that claimants had no cause of action by reason of the guest statute. The claimants demurred to the answers on the ground, among others:

'That G.S.1935, 8-122b, as construed by the Supreme Court of the State of Kansas, is not a valid law but is unconstitutional and void for the reason it violates Section 18 of the Bill of Rights of the Constitution of the State of Kansas, in that it denies one suffering injuries to his person right of recovery by due course of law.'

The demurrers were overruled and claimants have appealed from that ruling in the claim for injuries to Donald Lee Pizel. This constitutes the appeal in our case No. 37,744. The only question involved in the appeal is the constitutionality of G.S.1935, 8-122b, as construed by this court in view of Section 18 of the Bill of Rights of our Constitution.

Section 18 of our Bill of Rights reads:

'All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.'

In 1931 our legislature enacted what is commonly known as our guest statute, Chap. 81, Laws 1931, which was embodied in our General Statutes of 1935 as § 8-122b. It reads as follows:

'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.'

The statute first came before this court in the case of Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573, where the court held:

'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 'wantoness'.'

Counsel for appellants here contend that in reaching this conclusion we rewrote the phrase 'gross and wanton negligence' used in the statute so as to read 'wanton conduct,' and in doing so did not correctly interpret the statute. In the opinion we took note of the fact that the phrase 'gross and wanton negligence,' was not well selected; that in the earlier history of the state our statutes and decisions recognized three clauses of negligence--slight, ordinary and gross; that this classification lacked a firm basis, for damages resulting to one injured by the negligence of another were not increased or diminished by the classification into degrees of negligence which caused the injury; that the classification caused much trouble to courts and litigants in attempting to apply the definitions of the different degrees of negligence to the facts of a particular case, and that in harmony with the sounder reasoning and with the leading authorities elsewhere the classification of negligence into degrees was taken out of the law of this state Missouri Pac. Railway Co. v. Walters, 78 Kan. 39, 96 P. 346, and that due care became and is the sole test, and the lack of due care is negligence. We pointed out also that wanton conduct differs from negligent conduct not in degree but in kind, and cited authorities, including our prior decisions, making that clear. Our purpose was to determine the meaning of the language used in the statute. The words 'gross * * * negligence,' standing alone, would mean one thing--lack of due care, inadvertence--while 'wanton' conduct would mean something entirely different, an intentional act performed with knowledge that it would likely cause injury or damage to someone and with utter disregard of the consequences. If the legislature by the use of the words 'gross negligence' meant lack of due care, the statute made no change in our law, for before its enactment the host was liable to the guest for injuries resulting from lack of due care. By the use of the word 'wanton' in the phrase 'gross and wanton negligence,' the legislature intended to change the existing rule of liability of a host to his guest. Considering the statute as a whole, clearly that was the legislative purpose, and the effect to be given to the statute was only by interpreting it as we did.

We call particular attention to the Michigan guest statute, Chap. 19, Public Acts 1929, the pertinent portions of which read:

'That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportion shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.' (pp. 43, 44.)

In Grabowski v. Seyler, 261 Mich. 473, 246 N.W. 189, 190, dealing with a case which arose under the...