Yarnall v. Gass

Decision Date10 January 1948
Citation217 S.W.2d 283,240 Mo.App. 451
PartiesLeota Yarnall, Appellant, v. Doyle Gass and Kenneth Montague, Respondents
CourtKansas Court of Appeals

Delivered

Appeal from Circuit Court of Buchanan County; Hon. Emmett J. Crouse Judge.

Affirmed.

Price Shoemaker, Elmer E. Reital and Stanley I. Dale for appellant.

(1) The court erred in giving defendants' instruction A since plaintiff presented evidence which placed her case within the exception to the Kansas Guest Statute. Section 8-122-b General Statutes of Kansas, 1935. (2) Since the case fell within the exception to the Kansas Guest Statute, the court erred in holding that plaintiff failed to make a submissible case. Dennis v. Wood, (Mo.) 211 S.W. 2d 470; Pilcher v. Erny, 155 Kan. 257, 124 P.2d 461; Vogrin v. Bigger, 159 Kan. 271, 154 P.2d 111, 113; Srajer v. Swartzman, 164 Kan. 241, 188 P.2d 971, 974 (L. C. 2 & 3); Elliott v. Behner, 146 Kan. 827, 73 P.2d 1116.

Brown Douglas and Brown, R. A. Brown, Jr., for respondents.

The giving of respondent's instruction A was proper. Pilcher v. Erny, 155 Kan. 257; 124 P.2d 461; Vogrin v. Bigger, 159 Kan. 271; 154 Pac. (2) 111; Srajer v. Schwartzman, 164 Kan. 241; 188 Pac. (2) 971; Dennis v. Wood, (Mo.) 211 S.W. 2d 470.

OPINION

Dew, J.

Appellant, plaintiff below, brought suit for personal injuries incurred in an automobile accident. At the close of her evidence defendants offered an instruction for a directed verdict, which was given. From the judgment rendered thereunder, plaintiff has appealed.

In substance, the material facts alleged in plaintiff's petition are that defendant Doyle Gass was the owner of a Ford truck engaged in delivering United States mail and the same was being used in conducting a mail route from Marysville, Kansas to St. Joseph, Missouri; that both defendants are nonresidents of Missouri; that it was the custom of defendant Gass and his agent and employee, defendant Montague, to haul passengers while engaged in the aforesaid mail route, and for customers to give money to the driver of said truck upon the completion of the journey; that such servant and employee of defendant Gass accepted plaintiff as a passenger with the expectation of receiving money at the end of the journey; that plaintiff had ridden with said servant and employee on numerous prior occasions and "that the money to be paid for riding from Beattie to Hiawatha, Kansas was 75 cents". It is further alleged that on May 2, 1946, she was a passenger in said truck driven at the time by defendant Montague and that when the truck reached the town of Seneca, Kansas that night, said employee stopped the truck and parked on a steep incline in a public street by the Guilford Hotel; that while said agent was in the hotel, and while the truck in which plaintiff was seated was uncontrolled and unattended, as aforesaid, it rolled down the street and plaintiff, in the exercise of ordinary care for her own safety, attempted to alight from said truck, and was injured. Various charges of negligence are alleged having to do with insufficient brakes, failure to set the brakes, careless parking, etc. The injuries are alleged, but are immaterial to the question here involved.

In their answers defendants admit some of the allegations of the petition and deny others, but affirmatively plead as a complete defense Section 8-122b, General Statutes of Kansas, 1935, commonly known as the Kansas Guest Statute, which 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 answers further pleaded decisions of the Supreme Court of Kansas construing the above statute. The answers further alleged that the truck in question was operating on a regular trip and on a regular route picking up United States mail for transportation to and intermediate delivery at St. Joseph, Missouri, which was the primary and only purpose of said trip; that the plaintiff had not paid or suggested payment to either defendant of any compensation or consideration for the privilege of riding in said truck, and that defendants were not at the time engaged in the transportation of passengers for hire, and that under the circumstances plaintiff was a mere guest, being transported gratuitously for accommodation only, within the meaning of said Kansas Guest Statute. Defendants also alleged contributory negligence. The answer in behalf of defendant Kenneth Montague was filed by his guardian ad litem appointed by reason of that defendant's minority.

A reply was filed by the plaintiff which, among other denials, denied the application of the Kansas Guest Statute to this cause, and cited decisions of the Supreme Court of Kansas in support of that plea.

As stated by the appellant in her brief, "The principle issue in this case is whether or not the status of plaintiff is that of a fare-paying passenger, or a guest". That being the only issue submitted in the briefs, only such evidence as bears upon that question will be stated.

The plaintiff's testimony tended to prove that while she lived for many years in Kansas City, Missouri, she traveled extensively in Kansas in the employ of a publishing company, which published a magazine for which she solicited subscriptions. At the time in question she was assigned to northeastern Kansas, and on the morning of May 2, 1946, she went by railroad from Hiawatha, Kansas to Beattie, Kansas. She planned that evening to go to Hiawatha, where she could catch a train to Kansas City. She ate her evening meal in Beattie at a restaurant which was next door to the Post Office, from which place the driver of the mail truck was to leave. When defendant Montague, the driver of the mail truck arrived, plaintiff said to him: "May I ride down the highway with you to Hiawatha?", and he said: "Yes, you may". She had ridden with Montague twice before, once to Fairview and once to Hiawatha. She did not remember the dates, but the Fairview trip was "A year before the big fire", and the second trip was "a year or so" ago. She had paid him at the conclusion of both of those former trips. During the trip in question Montague told her defendant Gass owned the truck. They arrived at Seneca at about 9:00 o'clock in the evening. Montague stopped the truck on a rounding corner down a hill and said he had to pick up some mail. Plaintiff remained alone in the front seat. Montague stayed in the hotel for about twenty minutes. About the time he appeared and stood talking near the hotel, there was a gurgling sound in the motor, which was still running, and the truck "Just seemed to slide right away from under me". There were no lights inside the cab and no street lights were burning. It was total darkness. The truck gained speed as it moved down the incline and plaintiff reached for an emergency brake, which only fell back as she pulled it. Two cars were approaching and plaintiff pulled the steering wheel to direct the car to avoid the other cars and the truck swung quickly to the right into water, rocks and, apparently, a creek. The door snapped open and plaintiff was unable to recall what happened thereafter.

Upon cross-examination plaintiff said that previous to the last World War, she traveled her territory in her own car, but since 1941 had used the trains, bus, or sometimes would ride with "the mail route people". She was asked if she positively recalled that the defendant Montague, too young to have a driver's license in 1945 was the driver of the truck with whom she rode that year to Hiawatha, and she answered: "Well, I didn't pay any attention to the driver. I don't remember him". She stated, however, that she thought he was the...

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2 cases
  • White v. United Mills Co.
    • United States
    • Kansas Court of Appeals
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  • Wright's Estate, In re
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    • Kansas Supreme Court
    • March 10, 1951
    ...to prove a substantial consideration moving to the operator or owner of the vehicle. To the same effect see Yarnall v. Gass et al., 240 Mo.App. 451, 217 S.W.2d 283; Voelkl v. Latin, 58 Ohio App. 245, 16 N.E.2d 519; Clendenning v. Simerman, 220 Iowa 739, 263 N.W. 248; Jankins v. National Pai......

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