CASE ANNOTATIONS

1. Section discussed prior to its effective date. Howse v. Weinrich, 133 Kan. 132, 134, 298 P. 766.

2. Section construed; operator not liable unless guilty of wantonness. Stout v. Gallemore, 138 Kan. 385, 389, 393, 26 P.2d 573.

3. Meaning of term "gross negligence" in similar Nebraska statute discussed. Koster v. Matson, 139 Kan. 124, 30 P.2d 107.

4. Petition held insufficient, as facts pleaded did not constitute wantonness. Sayre v. Malcom, 139 Kan. 378, 379, 31 P.2d 8.

5. Pleadings considered and action held not governed by this section. Hartman v. Orcutt, 139 Kan. 785, 33 P.2d 133.

6. Gross and wanton negligence held not established under evidence. Ewing v. Edwards, 140 Kan. 325, 326, 36 P.2d 1021.

7. Act is inapplicable to accident which occurred in another state. Pool v. Day, 141 Kan. 195, 196, 40 P.2d 396.

8. Conduct of defendant held not reckless and wanton. Aduddell v. Brighton, 141 Kan. 617, 618, 42 P.2d 555.

9. Petition considered; held not to plead facts constituting "gross and wanton negligence." Murrell v. Janders, 141 Kan. 906, 908, 44 P.2d 218.

10. Evidence held insufficient to establish gross and wanton negligence; cases reviewed. Anderson v. Anderson, 142 Kan. 463, 465, 50 P.2d 995.

11. Facts considered and wantonness held not established. Cohee v. Hutson, 143 Kan. 784, 787, 57 P.2d 35.

12. Section is not applicable to cause of action arising in Missouri. Davidow v. Bold, 143 Kan. 913, 915, 57 P.2d 100.

13. "Guest" construed; where driver receives compensation passenger is not guest. Elliott v. Behner, 146 Kan. 827, 830, 73 P.2d 1116.

14. Driving without lights; guest guilty of contributory negligence. Donelan v. Wright, 148 Kan. 287, 289, 290, 81 P.2d 50.

15. Minor held "guest" even though unaccompanied by parent or guardian. Morgan v. Anderson, 149 Kan. 814, 816, 89 P.2d 866.

16. Plaintiff accompanied defendant to aid him; statute no defense. LeClair v. Hubert, 152 Kan. 706, 707, 107 P.2d 703.

17. "Without payment" construed; payment must be motivating cause of trip. Pilcher v. Erny, 155 Kan. 257, 258, 259, 260, 124 P.2d 461.

18. Persons transported by driver to help driver pick plums not "guest." Leonard v. Maryland Casualty Co., 158 Kan. 263, 268, 146 P.2d 378.

19. Motivating reason for being in car not payment; held guest. Vogrin v. Bigger, 159 Kan. 271, 272, 274, 154 P.2d 111.

20. Mentioned in discussing difference between "negligence" and "wantonness." Frazier v. Cites Service Oil Co., 159 Kan. 655, 664, 665, 157 P.2d 822.

21. Allegations in petition to avoid effect of section held properly stricken. Bryan v. Enyart, 161 Kan. 337, 338, 168 P.2d 89.

22. Contributory negligence of guest is affirmative defense and must be pleaded. Leabo v. Willet, 162 Kan. 236, 237, 238, 239, 175 P.2d 109.

23. "Gross and wanton negligence" defined. Leabo v. Willet, 162 Kan. 236, 237, 238, 239, 175 P.2d 109.

24. Petition need not allege guest exercised due care. Leabo v. Willet, 162 Kan. 236, 237, 238, 239, 175 P.2d 109.

25. Petition not alleging facts showing gross and wanton negligence demurrable. Leabo v. Willet, 162 Kan. 236, 237, 238, 239, 175 P.2d 109.

26. Cited in distinguishing wantonness and gross negligence. Elliott v. Peters, 163 Kan. 631, 636, 637, 185 P.2d 139.

27. "Payment" and "gross and wanton" defined; statute construed and applied. Srajer v. Schwartzman, 164 Kan. 241, 242, 245, 246, 247, 248, 249, 250, 188 P.2d 971.

28. Petition held not to allege facts constituting gross and wanton negligence. Mason v. Banta, 166 Kan. 445, 447, 449, 450, 201 P.2d 654.

29. Liability hereunder to guest who is outside vehicle discussed and determined. Marsh v. Hogeboom, 167 Kan. 349, 350, 341, 353, 205 P.2d 1190.

30. Negligence occurring while carrying out gratuitous undertaking brings liability within act. Marsh v. Hogeboom, 167 Kan. 349, 350, 351, 353, 205 P.2d 1190.

31. What petition must state; sufficiency of petition; wantonness; section constitutional. Bailey v. Resner, 168 Kan. 439, 440, 441, 442, 444, 445, 214 P.2d 323.

32. Act discussed and construed in exhaustive opinion and held valid. Wright v. Pizel, 168 Kan. 493, 494, 495, 496, 497, 499, 503, 506, 214 P.2d 328.

33. Party to "share a ride" agreement was passenger not guest; section inapplicable. Sparks v. Getz, 170 Kan. 287, 288, 290, 225 P.2d 106.

34. Child in unrestricted care and custody of party transporting held guest. In re Estate of Wright, 170 Kan. 600, 602, 604, 606, 608, 609, 228 P.2d 911.

35. Petition held to state cause of action hereunder; demurrer properly overruled. Fyne v. Emmett, 171 Kan. 383, 385, 386, 389, 233 P.2d 496.

36. Allegations of petition examined in wrongful death action; held sufficient. In re Estate of Bisoni, 171 Kan. 631, 633, 634, 635, 637, 237 P.2d 404.

37. Liability under G.S. 1949, 8-222, held not limited by this section. In re Estate of Bisoni, 171 Kan. 631, 633, 634, 635, 637, 237 P.2d 404.

38. Action to recover damages hereunder; petition examined and held sufficient. Hanson v. Swain, 172 Kan. 105, 107, 109, 110, 238 P.2d 517.

39. Mentioned in holding neither spouse may maintain tort action for damages against the other. Sink v. Sink, 172 Kan. 217, 219, 239 P.2d 933.

40. Pupil being transported to athletic contest was not guest. Kitzel v. Atkeson, 173 Kan. 198, 200, 201, 245 P.2d 170.

41. Airplane is not a "motor vehicle"; section inapplicable to airplanes. In re Estate of Hayden, 174 Kan. 140, 144, 145, 254 P.2d 813.

42. Petition examined and held to state cause of action hereunder. MacDougall v. Walthall, 174 Kan. 663, 664, 666, 667, 668, 257 P.2d 1107.

43. Wrongful death action; sufficiency of petition; gross and wanton negligence defined. In re Estate of Kerschen. 176 Kan. 226, 230, 231, 269 P.2d 1033.

44. Plaintiff's petition and opening statement held not to show plaintiff was guest. Ward v. Dwyer, 177 Kan. 212, 216, 277 P.2d 644.

45. Whether $2.00 per week payment was chief motivating cause for transportation considered. Ward v. Dwyer, 177 Kan. 212, 216, 277 P.2d 644.

46. Petition alleging mileage paid defendant by county included payment for plaintiff's transportation, sufficiency. Shanks v. Gilkinson, 177 Kan. 225, 226, 228, 277 P.2d 594.

47. Plaintiff accompanying defendant's mechanic on "road test" held not a guest. Thomas v. Hughes, 177 Kan. 347, 348, 279 P.2d 286.

48. History of section; requisites for determining who is "guest"; what constitutes "payment." Bedenbender v. Walls, 177 Kan. 531, 532, 535, 280 P.2d 630.

49. Hunting trip; agreement as to expenses; status of parties determined. Bedenbender v. Walls, 177 Kan. 531, 532, 535, 280 P.2d 630.

50. Payment of expenses on social and mutual pleasure trip is not "payment for such transportation." Bedenbender v. Walls, 177 Kan. 531, 532, 535, 280 P.2d 630.

51. Trip to attend fraternal order convention; consideration; passenger held guest; sufficiency of petition. In re Estate of Dikeman, 178 Kan. 188, 189, 193, 195, 284 P.2d 622.

52. Cited; necessity of alleging nature and status of transportation mentioned. Wilson v. Cyrus, 178 Kan. 239, 241, 284 P.2d 597.

53. Evidence of contributory negligence by guest sufficient to go to jury. Beye v. Andres, 179 Kan. 502, 505, 506, 296 P.2d 1049.

54. Speed at intersection together with other evidence held wanton negligence. Long v. Foley, 180 Kan. 83, 89, 299 P.2d 63.

55. Petition considered; gross and wanton negligence alleged; demurrer properly overruled. Elliott v. McKenzie, 180 Kan. 344, 346, 304 P.2d 550.

56. Action between employee and employer; section inapplicable under facts stated. Van Royen v. Osborn, 181 Kan. 39, 41, 42, 309 P.2d 630.

57. Paying guest asleep; doctrine of res ipsa loquitur properly invoked. Rupe v. Smith, 181 Kan. 606, 607, 608, 609, 313 P.2d 293.

58. Payment of expenses from joint checking account; decedent held "paying guest." Rupe v. Smith, 181 Kan. 606, 607, 608, 609, 313 P.2d 293.

59. Allegations of speeding with knowledge of defective tire; gross and wanton negligence. Hickert v. Wright, 182 Kan. 100, 104, 319 P.2d 152.

60. Evidence of gross and wanton negligence held sufficient. Dirks v. Gates, 182 Kan. 581, 582, 589, 322 P.2d 750.

61. Gross and wanton negligence held sufficiently stated in petition. O'Brien v. Jones, 183 Kan. 170, 173, 174, 326 P.2d 257.

62. Proof of status as paying passenger unduly restricted under similar Colorado law. In re Estate of Carrell, 183 Kan. 491, 494, 327 P.2d 883.

63. Contributory negligence and assumption of risk no defense, when; speed as wantonness. Perry v. Schmitt, 184 Kan. 758, 759, 762, 339 P.2d 36.

64. Minors not excepted; what constitutes payment to make statute inapplicable determined. Ehrsam v. Borgen, 185 Kan. 776, 777, 779, 780, 347 P.2d 260.

65. Share the ride agreement constituted payment; statute inapplicable; damage action. Ehrsam v. Borgen, 185 Kan. 776, 777, 779, 780, 347 P.2d 260.

66. Rules for determining whether person is "guest" stated and applied. Lloyd v. Runge, 186 Kan. 54, 55, 58, 59, 60, 61, 62, 63, 348 P.2d 594.

67. Intoxicated person drove 80 miles per hour at night; gross and wanton negligence. Johnson, Administrator v. Huskey, 186 Kan. 282, 284, 285, 350 P.2d 14.

68. Evidence held insufficient to prove gross and wanton negligence; speed, etc. Tuminello v. Lawson, 186 Kan. 721, 722, 723, 724, 725, 352 P.2d 1057.

69. Statute not involved; gross and wanton negligence defined; exemplary damages; sufficiency of petition. Allman v. Bird, 186 Kan. 802, 805, 806, 353 P.2d 216.

70. Cited in discussing negligence allegations in petition not based on section. Cadwallader v. Bennett, 187 Kan. 246, 252, 356 P.2d 862.

71. Section cited in discussing and defining "wantonness" in damage action. Horn v. Chicago, R.I. & Pac. Rld. Co., 187 Kan. 423, 427, 357 P.2d 815.

72. Petition sufficiently alleged payment for transportation; demurrer properly overruled. Flynn v. Allen, 187 Kan. 578, 358 P.2d 734.

73. "Gross and wanton negligence" defined; high speed at twilight on wet pavement. Swinney v. Ward, 187 Kan. 746, 747, 752, 360 P.2d 193.

74. Verdict and findings in personal injury action supported by evidence. Robles v. Central Surety & Insurance Corporation, 188 Kan. 506, 363 P.2d 427.

75. Statute inapplicable where plaintiff was the operator in physical control of the car, and defendant a passenger. Greenwood v. Gardner, 189 Kan. 68, 72, 366 P.2d 780.

76. Record of action under this section reviewed; affirmed. Polzar v. Raymond, 189 Kan. 340, 344, 345, 369 P.2d 373.

77. Defense of assumption of risk not applicable to actions under guest statute. Shufelberger v. Worden, 189 Kan. 379, 385, 369 P.2d 382.

78. Wrongful death action; special finding that deceased was not a paying passenger controlled general verdict. Flynn v. Allen, 189 Kan. 533, 535, 370 P.2d 112.

79. Petition held to state cause of action as against demurrer; "gross and wanton negligence" and wantonness defined. Saunders v. Shaver, 190 Kan. 699, 701, 702, 378 P.2d 70.

80. Claimant must make affirmative showing of payment or gross and wanton negligence to avoid bar of statute. Cope v. Radford, 191 Kan. 617, 621, 622, 623, 383 P.2d 563.

81. Act is inapplicable to accident occurring in another state; dicta. La Prelle v. Cessna Aircraft Co., 85 F. Supp. 182, 183, 185.

82. Passenger sharing costs on pleasure trip not conditioned on contribution is guest. Allen v. Keck, 113 F. Supp. 873, 874, 876. Affirmed: 212 F.2d 425, 428.

83. Evidence examined and held insufficient to establish joint enterprise; passenger held guest. Allen v. Keck, 113 F. Supp. 873, 874, 876. Affirmed: 212 F.2d 425, 428.

84. Whether passenger accompanying employer's agent was guest considered but section not applied. Jones v. Avco Manufacturing Corporation, 218 F.2d 406.

85. Kansas rule as to gross and wanton negligence stated. Coulter v. Coulter, 219 F.2d 778, 779.

86. Court reporter held guest of judge; damage denied. Broadwater v. Coleman, 224 F.2d 186, 187, 188.

87. Plaintiff not a "guest" within meaning of statute; joint enterprise considered. Lightcap v. Mettling, 196 Kan. 124, 126, 409 P.2d 792.

88. Mental attitude as establishing "wantonness" hereunder; instructions. Muhn v. Schell, 196 Kan. 713, 715, 413 P.2d 997.

89. Accident caused by gross and wanton negligence of drivers. Bogle v. Conway, 198 Kan. 166, 422 P.2d 971.

90. Where transportation of passenger promotes common interest of passenger and driver, passenger not guest; but passenger in family shopping tour held to be guest. Gorelick v. Ernstein, 200 Kan. 619, 620, 622, 438 P.2d 93.

91. Trial court erred in giving "love of life" instruction where there was substantial positive evidence of negligence. Akin v. Estate of Hill, 201 Kan. 306, 307, 309, 440 P.2d 585.

92. Lower court determination of gross and wanton negligence upheld. Mann v. Good, 202 Kan. 631, 634, 635, 451 P.2d 233.

93. Statute applies only to those being transported; party entering vehicle not guest. Chapman v. Parker, 203 Kan. 440, 441, 454 P.2d 506.

94. Evidence of gross and wanton negligence sufficient to withstand motion for directed verdict. Pickens v. Maxwell, 203 Kan. 559, 564, 456 P.2d 4.

95. Constitutionality upheld; does not contravene article 2, section 16 of the state constitution, nor does it violate either section 18 of the bill of rights of the state constitution or the due process clauses of the federal constitution. Westover v. Schaffer, 205 Kan. 62, 63, 468 P.2d 251.

96. "Payment" to operator need not be money, but any substantial benefit accruing directly to the driver. Rothwell v. Transmeier, 206 Kan. 199, 203, 477 P.2d 960.

97. Evidence insufficient to establish gross and wanton conduct; directed verdict sustained. Reynolds v. Estate of Stanosheck, 206 Kan. 714, 715, 482 P.2d 440.

98. Evidence insufficient to support a finding of gross and wanton negligence; reversed. Bacon v. Werner, 207 Kan. 26, 30, 484 P.2d 1020.

99. Contributions toward purchase of gasoline not motivating influence of trip; held section applied. Carruth v. Cunningham, 207 Kan. 781, 782, 783, 486 P.2d 1401.

100. Plaintiff held to be guest in vehicle. Chinn v. Lindsay, 210 Kan. 90, 91, 499 P.2d 1074.

101. Transportation to complete sale of passenger's house to driver; passenger not a guest hereunder. Rogers v. Wahl, 210 Kan. 352, 502 P.2d 716.

102. Issue contending court erred applying standards of host-guest conduct to property owners not raised at trial; improperly raised on appeal. Montgomery v. Barton, 212 Kan. 368, 369, 510 P.2d 1187.

103. Section held violative of the equal protection clause; guest statute unconstitutional. Henry v. Bauder, 213 Kan. 751, 752, 754, 763, 518 P.2d 362.

104. Directed verdict hereunder upheld; no gross and wanton conduct shown. Neilson v. Gambrel, 214 Kan. 339, 340, 520 P.2d 1194.

105. Summary judgment rendered prior to date statute held unconstitutional erroneous; claim remanded for trial under present law. Vaughn v. Murray, 214 Kan. 456, 458, 461, 463, 464, 521 P.2d 262.

106. Evidence disclosed commuting was purely for business purpose; summary judgment not sustained; law governing after section held unconstitutional. Heim v. Werth, 214 Kan. 855, 522 P.2d 389.

107. Court must look to wrongdoer's mental attitude to determine whether act gross and wanton. Hammer v. Stanley, 491 F.2d 1297, 1298, 1299.

108. Statute applicable; actions did not constitute gross and wanton negligence; directed verdict affirmed. Freeman v. Jenkins, 218 Kan. 54, 55, 56, 542 P.2d 287.

109. Judgment by passenger against drivers of both vehicles not binding under facts on question of liability of drivers inter se. Williams v. Evans, 220 Kan. 394, 395, 552 P.2d 876.

110. Contention that construction of former section applied to attractive nuisance doctrine rejected. Gerchberg v. Loney, 223 Kan. 446, 452, 576 P.2d 593.

111. Mentioned in decision establishing effect of K.S.A. 46-902 to be prospective only. Thome v. City of Newton, 229 Kan. 375, 377, 624 P.2d 454.

112. Cited in discussion of interspousal tort immunity and trend toward abolition of tort immunities (dissenting opinion). Guffy v. Guffy, 230 Kan. 89, 98, 631 P.2d 646 (1981).