plation of the trip plaintiff and Randal Dikeman orally agreed she would pay him a reasonable sum for transporting her to Topeka and return to Pratt, Kansas; that pursuant to such arrangement Dikeman transported plaintiff, along with others, to Topeka, the purpose of the trip being to attend the Grand Chapter meeting of the Order to be held in that city; that there Dikeman, plaintiff, and others accompanying on the trip discussed what each would pay him for their transportation from Pratt to Topeka and return and decided the amount thereof should be reasonable and finally fixed upon completion of the return trip; that thereafter all parties left Topeka in Dikeman's automobile for the return to Pratt but such trip was not completed due to the fact the automobile in which all parties were riding was involved in an accident with a Missouri Pacific freight train at a railroad crossing at Turon, resulting in the death of Dikeman and his wife and serious injuries to the plaintiff. Following Bedenbender v. Walls, 177 Kan. 531, 280 P.2d 630, it is held that under the facts above stated and others alleged in the petition, (1) plaintiff was a guest in the Dikeman automobile at the time of the accident; (2) the guest statute (G.S. 1949, 8-122b) has application; and (3) the trial court did not err in sustaining a demurrer to the petition, which states a cause of action for ordinary negligence only. Appeal from Pratt district court; CLARK A. WALLACE, judge.
In determining the question whether a person is or is not a "guest" within the meaning of the statute, among the many elements to be considered are the identity and relationship of the parties; the circumstances of the transportation; the nature, type and amount of "payment"; the benefits or advantages resulting to the respective parties growing out of the transportation; whether the "payment," of whatever nature, constituted a tangible benefit to the operator and was the motivating influence for furnishing the transportation; and the nature and purpose of the trip. (Following Bedenbender v. Walls, 177 Kan. 531, Syl. ¶ 4, 280 P.2d 630.) 3. SAME — Guest Statute — Social Purpose.
In approaching a decision of the foregoing question it must be admitted, as the parties concede, that our reports disclose no cases where we have been called upon to decide the precise question here presented on the basis of identical facts. Indeed, after an extended examination of all the decisions dealing with the subject, it can be said we have failed to find, and the parties do not cite, any case with facts, conditions and circumstances of such character that it can be properly classified as a controlling precedent in this jurisdiction or elsewhere. Thus, particularly since this court has long recognized that in general the determination of the question whether a person is or is not a "guest" within the meaning of the statute depends largely upon the facts, and circumstances of the particular case (See, e.g., Bedenbender v. Walls, 177 Kan. 531, 536, Syl ¶ 3, 280 P.2d 630; Thomas v. Hughes, 177 Kan. 347, 351, 279 P.2d 286; and Hickert v. Wright, 182 Kan. 100, 105, 319 P.2d 152), it appears we are now confronted with a question of first impression which must be disposed of upon the basis of its own factual background under general rules and principles previously enunciated in other cases requiring interpretation and application of our guest statute. Notwithstanding, what has just been stated, it should be noted at this point that in their briefs the parties cite and rely upon a number of our former decisions in support of their contentions respecting the question now under consideration.
"In determining the question whether a person is or is not a `guest' within the meaning of the statute, among the many elements to be considered are the identity and relationship of the parties; the circumstances of the transportation; the nature, type and amount of `payment'; the benefits or advantages resulting to the respective parties growing out of the transportation; whether the `payment', of whatever nature, constituted a tangible benefit to the operator and was the motivating influence for furnishing the transportation; and the nature and purpose of the trip. (Following Bedenbender v. Walls, 177 Kan. 531, Syl. ¶ 4, 280 P.2d 630.)" (Syl. ¶ 2.) This court also said in Gorelick v. Ernstein, 200 Kan. 619, 438 P.2d 93, at page 622:
The history of K.S.A. 8-122b and the rules to be applied thereunder to determine whether a passenger in a vehicle is a guest on a given occasion have been stated in three well written recent opinions. They are: Bedenbender v. Walls, 177 Kan. 531, 280 P.2d 630; Lloyd v. Runge, 186 Kan. 54, 348 P.2d 594; and Gorelick v. Ernstein, 200 Kan. 619, 438 P.2d 93. No effort will be made to reiterate a review of the Kansas law under the guest statute which has been so aptly stated in these opinions.
Under the guest statute (G.S. 1949, 8-122b) one who is transported by the owner or operator of a motor vehicle as his guest, "without payment for such transportation," does not have a cause of action for damages against the owner or operator for injuries, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence on the part of such operator. ( Bedenbender v. Walls, 177 Kan. 531, syl. 1, 280 P.2d 630; In re Estate of Dikeman, 178 Kan. 188, syl. 1, 284 P.2d 622.) The petition did not allege — and it is not contended — that defendant was guilty of gross and wanton negligence.
the owner and operator of an automobile as defendants alleges in substance that the decedent and defendant operator of the automobile were close personal friends who shared their incomes and pleasures and who put their individual incomes into a joint checking account and from this joint account all expenses of both either individually or jointly were paid by check or by cash including the expenses of operating the automobile in which decedent died; that the decedent was riding in the automobile driven and controlled by defendant operator both of whom were en route to Wichita; that while proceeding on a Kansas highway decedent was in the front seat with defendant operator and was asleep; that defendant operator drove the automobile off the road into a concrete embankment causing the decedent's death; that there were no apparent defects in the car, road or limited visibility and that the plaintiff had no knowledge as to how or why the fatal accident occurred, it is held, distinguishing Bedenbender v. Walls, 177 Kan. 531, 280 P.2d 630; and In re Estate of Dikeman, 178 Kan. 188, 284 P.2d 622, that under the facts as alleged in the petition, (1) the decedent is a "paying guest" for such transportation in the automobile of the defendant at the time of the accident and thus the guest statute (G.S. 1949, 8-122b) has no application; and (2) the trial court did not err in overruling a demurrer to the petition which states a cause of action for ordinary negligence and invokes the rule of res ipsa loquitur. 2.
Further, it should be noted that the employer directed his employee to be ready at a certain time to go with him to answer the charges in the court of Augusta. There is no showing on the face of the petition that the trip would have been made by the employer irrespective of whether the employee went or not ( Pilcher v. Erny, 155 Kan. 257, 260, 124 P.2d 461) and the trip was definitely not for the mutual pleasure of appellant and appellee. ( Bedenbender v. Walls, 177 Kan. 531, Syl. ¶ 6, 280 P.2d 630.) Our previous decisions have consistently held that the guest statute is inapplicable when one rides in an automobile owned and operated by another and the driver receives compensation — whether paid by the rider or by someone on his behalf.
There was no sharing of expenses, no business venture, nothing more than a pleasure trip. There was no pecuniary interest involved, and the parties were engaged in nothing other than a social excursion. Under Kansas law, absent a mutual business interest, as here, the elements required to establish a joint enterprise are not present in this case. Bedenbender v. Walls, 177 Kan. 531, 535, 280 P.2d 630; Angell v. Hester, 186 Kan. 43, 46, 348 P.2d 1050; In re Estate of Dikeman, 178 Kan. 188, 199, 284 P.2d 622. Restatement, Torts 2d, § 491(e) "Automobile Trips." HICKS IS NOT ENTITLED TO RECOVER
On the day of the accident there was no arrangement for payment and no payment was made. In Bedenbender v. Walls, 177 Kan. 531, 280 P.2d 630, we held: ". . .