The opinion of the court was delivered by
Harvey, C. J.:
This was an administrator’s action for the alleged wrongful death of Allen Risoni, sixteen years of age. The defendants were Clayton D. Carlson and his father, A. J. Carlson. Defendants joined in a demurrer to plaintiff’s amended petition upon [632]*632the ground that it does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendants, and for the reason that it affirmatively shows on its face that plaintiff is barred from recovery. This demurrer was presented to and considered by the court and was sustained. Plaintiff has appealed.
In addition to other matters pertinent to such an action it was alleged that about 12:30 p. m. November 24, 1948, the decedent Bisoni and several other boys were invited by the defendant, Clayton D. Carlson, a minor under the age of sixteen years, to take a ride in a 1933 Ford coach owned by the defendant, A. J. Carlson, the automobile having defective steering apparatus and defective brakes; that Bisoni rode with Clayton D. Carlson south of Council Grove on state highway K 13, the highway being of gravel construction, with great amounts of loose gravel thereon and a gravel windrow several inches high on the west side thereof; that at a point about one mile south of Council Grove on the highway the defendant, Clayton D. Carlson, drove the car at a high, dangerous and excessive rate of speed in excess of fifty miles per hour; that Bisoni and other passengers of the car repeatedly asked Clayton D. Carlson to slow down and drive carefully, and Bisoni told the driver to stop so that he could get out of the car or he would jump out; that Clayton D. Carlson ignored the remonstrances and requests and failed to slow down and reduce his speed or to stop the car, and refused to allow Bisoni to get out of the car; that while traveling at the dangerous and excessive rate of speed Clayton D. Carlson caused the car to swerve from side to side on the graveled highway with reckless disregard to consequences, thereby losing control of the automobile and causing it to turn over, whereby Bisoni suffered a fractured skull, and as a direct result of the injuries so received died on the same day; that the death of Bisoni was directly caused by the gross and wanton negligence and careless act of the defendant, Clayton D. Carlson, previously alleged, and also by the gross and wanton negligence and careless acts of the defendant, Clayton D. Carlson, which were enumerated in separate paragraphs, substantially repeating what was previously alleged; that the Ford car in which Bisoni was riding and which was being driven by Clayton D. Carlson was the property of and belonged to the defendant, A. J. Carlson; that at the time Bisoni received the injuries which caused his death, and for a long time prior thereto, the exact time being unknown to plaintiff, Clayton D. Carlson was an incompetent, careless, [633]*633reckless automobile driver; and that he habitually drove an automobile at a high, dangerous and excesive rate of speed upon the highways of Kansas without regard to the safety of other users of the highway and the condition of the road traveled, and with utter disregard of the rights of other persons; that at the time Bisoni received his injuries which resulted in his death, and for a long time prior thereto, which length of time plaintiff was unable to state, Clayton D. Carlson had the general reputation in the community of his residence as being an incompetent, careless, reckless automobile driver, all of which the defendant, A. J. Carlson, knew or had reasonable cause to know, and the defendant, A. J. Carlson, negligently allowed and permitted Clayton D. Carlson to use, drive and operate the car on the highways of the state at the time of the injuries and death of Bisoni, and at that time Clayton D. Carlson was driving the automobile with the permission of the defendant, A. J. Carlson.
With respect to the liability of A. J. Carlson, counsel for appellant argue that the allegations of the petition are ample, if established, to hold him liable either under the rules of the common law, as announced in Priestly v. Skourup, 142 Kan. 127, 45 P. 2d 852, and also under our statute (G. S. 1949, 8-222). Counsel for appellees readily admit that were it not for our “guest” statute (G. S. 1949, 8-122b) the petition states a cause of action against A. J. Carlson, but contend that unless plaintiff, under the allegations of the petition, is entitled to recover against the defendant, Clayton D. Carlson, under the guest statute, that he is not entitled to recover from either of the defendants. In support of that argument counsel for the appellees cite a number of authorities, most of them being cases from jurisdictions other than our own. We have read all these authorities and many more and find that none of them is directly in point. Many of them involve some question of agency between the owner and the operator of the car, or turn upon the doctrine of respondeat superior, neither of which is applicable here; others turn upon common law liability of the owner, or upon statutes unlike ours. We think we must decide the case upon our own statutes.
The sections of our statute in question were enacted at the same session of our legislature. G. S. 1949, 8-122b is section 1 of chapter 81, Laws of 1931, and became effective May 28, 1931. G. S. 1949, 8-222 is section 22 of chapter 80, Laws of 1931, and became effective on June 30, 1931. Neither makes any specific reference to the other. The statute relied upon by appellant reads:
[634]*634“Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives or furnishes' a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.” (G. S. 1949, 8-222).
Statutes of this kind extend the common law rule of liability of the owner. They have been sustained as a valid exercise of the police power and have been applied in harmony with their terms to the facts alleged or established. (See 5 Am. Jur. 732 to 738.) Our statute was upheld and applied in Shrout v. Rinker, 148 Kan. 820, 84 P. 2d 974. The negligence of A. J. Carlson occurred when he permitted his son Clayton to use the car on the highways, although the amount of his liability would be measured by the extent of the damages resulting from the negligence of Clayton in driving the car. The statute as applied here makes A. J. Carlson and Clayton “jointly and severally liable” for such damages. In Dickson v. Yates, 194 Iowa 910, 917, 188 N. W. 948, it was held:
“The joint liability of wrongdoers in tort is a joint and several liability, but exists only where the wrong itself is joint.”
In 62 C. J. 1130 begins a discussion of joint and several liability. Beginning at page 1132 it is said:
“Torts which are several, separate, and independent acts when committed do not become joint by the subsequent union or intermingling of their consequences where no concert of tortious action or consequence is intended by the parties or implied by law. . . .” (Citing many cases.)
See, also, 52 Am. Jur., Torts, § 112. Even there it is treated under general rules of law; here we have a statute fixing a severable liability. We think the word “severally” in the statute cannot be ignored.
Here the tort was not jointly committed. A. J.
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The opinion of the court was delivered by
Harvey, C. J.:
This was an administrator’s action for the alleged wrongful death of Allen Risoni, sixteen years of age. The defendants were Clayton D. Carlson and his father, A. J. Carlson. Defendants joined in a demurrer to plaintiff’s amended petition upon [632]*632the ground that it does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendants, and for the reason that it affirmatively shows on its face that plaintiff is barred from recovery. This demurrer was presented to and considered by the court and was sustained. Plaintiff has appealed.
In addition to other matters pertinent to such an action it was alleged that about 12:30 p. m. November 24, 1948, the decedent Bisoni and several other boys were invited by the defendant, Clayton D. Carlson, a minor under the age of sixteen years, to take a ride in a 1933 Ford coach owned by the defendant, A. J. Carlson, the automobile having defective steering apparatus and defective brakes; that Bisoni rode with Clayton D. Carlson south of Council Grove on state highway K 13, the highway being of gravel construction, with great amounts of loose gravel thereon and a gravel windrow several inches high on the west side thereof; that at a point about one mile south of Council Grove on the highway the defendant, Clayton D. Carlson, drove the car at a high, dangerous and excessive rate of speed in excess of fifty miles per hour; that Bisoni and other passengers of the car repeatedly asked Clayton D. Carlson to slow down and drive carefully, and Bisoni told the driver to stop so that he could get out of the car or he would jump out; that Clayton D. Carlson ignored the remonstrances and requests and failed to slow down and reduce his speed or to stop the car, and refused to allow Bisoni to get out of the car; that while traveling at the dangerous and excessive rate of speed Clayton D. Carlson caused the car to swerve from side to side on the graveled highway with reckless disregard to consequences, thereby losing control of the automobile and causing it to turn over, whereby Bisoni suffered a fractured skull, and as a direct result of the injuries so received died on the same day; that the death of Bisoni was directly caused by the gross and wanton negligence and careless act of the defendant, Clayton D. Carlson, previously alleged, and also by the gross and wanton negligence and careless acts of the defendant, Clayton D. Carlson, which were enumerated in separate paragraphs, substantially repeating what was previously alleged; that the Ford car in which Bisoni was riding and which was being driven by Clayton D. Carlson was the property of and belonged to the defendant, A. J. Carlson; that at the time Bisoni received the injuries which caused his death, and for a long time prior thereto, the exact time being unknown to plaintiff, Clayton D. Carlson was an incompetent, careless, [633]*633reckless automobile driver; and that he habitually drove an automobile at a high, dangerous and excesive rate of speed upon the highways of Kansas without regard to the safety of other users of the highway and the condition of the road traveled, and with utter disregard of the rights of other persons; that at the time Bisoni received his injuries which resulted in his death, and for a long time prior thereto, which length of time plaintiff was unable to state, Clayton D. Carlson had the general reputation in the community of his residence as being an incompetent, careless, reckless automobile driver, all of which the defendant, A. J. Carlson, knew or had reasonable cause to know, and the defendant, A. J. Carlson, negligently allowed and permitted Clayton D. Carlson to use, drive and operate the car on the highways of the state at the time of the injuries and death of Bisoni, and at that time Clayton D. Carlson was driving the automobile with the permission of the defendant, A. J. Carlson.
With respect to the liability of A. J. Carlson, counsel for appellant argue that the allegations of the petition are ample, if established, to hold him liable either under the rules of the common law, as announced in Priestly v. Skourup, 142 Kan. 127, 45 P. 2d 852, and also under our statute (G. S. 1949, 8-222). Counsel for appellees readily admit that were it not for our “guest” statute (G. S. 1949, 8-122b) the petition states a cause of action against A. J. Carlson, but contend that unless plaintiff, under the allegations of the petition, is entitled to recover against the defendant, Clayton D. Carlson, under the guest statute, that he is not entitled to recover from either of the defendants. In support of that argument counsel for the appellees cite a number of authorities, most of them being cases from jurisdictions other than our own. We have read all these authorities and many more and find that none of them is directly in point. Many of them involve some question of agency between the owner and the operator of the car, or turn upon the doctrine of respondeat superior, neither of which is applicable here; others turn upon common law liability of the owner, or upon statutes unlike ours. We think we must decide the case upon our own statutes.
The sections of our statute in question were enacted at the same session of our legislature. G. S. 1949, 8-122b is section 1 of chapter 81, Laws of 1931, and became effective May 28, 1931. G. S. 1949, 8-222 is section 22 of chapter 80, Laws of 1931, and became effective on June 30, 1931. Neither makes any specific reference to the other. The statute relied upon by appellant reads:
[634]*634“Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives or furnishes' a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.” (G. S. 1949, 8-222).
Statutes of this kind extend the common law rule of liability of the owner. They have been sustained as a valid exercise of the police power and have been applied in harmony with their terms to the facts alleged or established. (See 5 Am. Jur. 732 to 738.) Our statute was upheld and applied in Shrout v. Rinker, 148 Kan. 820, 84 P. 2d 974. The negligence of A. J. Carlson occurred when he permitted his son Clayton to use the car on the highways, although the amount of his liability would be measured by the extent of the damages resulting from the negligence of Clayton in driving the car. The statute as applied here makes A. J. Carlson and Clayton “jointly and severally liable” for such damages. In Dickson v. Yates, 194 Iowa 910, 917, 188 N. W. 948, it was held:
“The joint liability of wrongdoers in tort is a joint and several liability, but exists only where the wrong itself is joint.”
In 62 C. J. 1130 begins a discussion of joint and several liability. Beginning at page 1132 it is said:
“Torts which are several, separate, and independent acts when committed do not become joint by the subsequent union or intermingling of their consequences where no concert of tortious action or consequence is intended by the parties or implied by law. . . .” (Citing many cases.)
See, also, 52 Am. Jur., Torts, § 112. Even there it is treated under general rules of law; here we have a statute fixing a severable liability. We think the word “severally” in the statute cannot be ignored.
Here the tort was not jointly committed. A. J. Carlson committed his wrong when he consented to Clayton D. Carlson driving the car, and Clayton D. Carlson having committed his wrong later when he was driving it. A. J. Carlson had previously made himself liable for any damages caused by Clayton’s negligence.
G. S. 1949, 8-122b, relied upon by appellees, reads:
“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.” (Our italics.)
Counsel for the appellant confend that the only “owner” men[635]*635tioned in this statute is the one who is transporting a person who claims damages. That conclusion seems to be justified by the language of the statute, as seems clear by omitting the words we have italicised, “or operator,” in the two places where they occur. In this interpretation the statutes are not conflicting. We think the result is that A. J. Carlson is liable under G. S. 1949, 8-222, and that G. S. 1949, 8-122b, does not limit that liability.
The next question to be considered is whether Clayton D. Carlson can be held liable in damages under the allegations of the petition. These must be compared with our statute above quoted (G. S. 1949, 8-122b). Since Allen Bisoni was being transported in a motor vehicle by Clayton D. Carlson as his guest, Clayton is liable only if the death of Bisoni resulted from the gross and wanton negligence of Clayton. How to compare the alleged acts of Clayton with the statute is well stated in Bailey v. Resner 168 Kan. 439, 214 P. 2d 323, where the pertinent syllabus reads:
“To state a cause of action under G. S. 1935 (1949), 8-122b, the petition must allege facts tending to show that the host’s conscious conduct indicated a reckless disregard and complete indifference and unconcern for the probable consequences of his wrongful act, . . .”
And in the opinion (pp. 441,442) it was said:
“By many previous decisions of this court the phrase ‘gross and wanton negligence’ has been held to mean ‘wantonness’ (citations). What is wantonness and how should it be defined? This court has defined it in nearly a score of cases since the enactment of the guest statute in 1931 (citations), and it may be said that the sum total of these definitions expounded in the past amounts to this — a wanton act is something more than ordinary negligence, and yet it is something less than willful injury; to constitute wantonness, the act must indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It might be said to include a willful, purposeful, intentional act, but not necesarily so; it is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result.”
And, quoting from Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822, at page 666, it was said:
“. . . to constitute wantonness the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not. Stated in another way, if the actor has reason to believe his act may injure an-. other, and does it being indifferent to whether or not it injures, he is guilty of wanton conduct.”
[636]*636This was quoted and followed in In re Estate of Wright, 170 Kan. 600-607, 228 P. 2d 911, as an appropriate test of what constitutes wantonness. (See, also, Fyne v. Emmett, 171 Kan. 383, 388, 233 P. 2d 496.)
Examining the petition in the light of the authorities just cited it is noted that in the petition it is alleged that the car was a 1933 Ford coach (fifteen years old at the time of the tragedy here involved), with defective steering apparatus and defective brakes; that the highway was of gravel construction with great amounts of loose gravel thereon; that Clayton D. Carlson drove the car at a high, dangerous and excessive rate of speed, in excess of fifty miles per hour; that Bisoni and other passengers in the car asked the driver to slow down and to drive carefully, and Bisoni told the driver to slow down so he could get out of the car ór he would jump out; that Clayton D. Carlson ignored these requests and failed and refused to reduce the speed of the car and refused to allow Bisoni to get out of the car, and while traveling at the speed named Clayton D. Carlson caused the car to swerve from side to side of the highway, thereby losing control of the car and causing it to turn over, with the result that Bisoni was thrown from the car and killed. We are told the petition was not motioned, hence it must be construed favorably for the pleader, and for the purpose of the demurrer all of these allegations are admitted. We are unable to say as a matter of law that these allegations here admitted, if established by proof, would be insufficient to sustain a verdict for plaintiff against Clayton D. Carlson under our guest statute. It is well settled by. the authorities that where a driver ignores appropriate and repeated admonitions to use care, the fact he does not do so may be considered in determining the state of mind of the driver in concluding whether his conduct was reckless. (See, Titus v. Lonergan, 322 Mich. 112, 33 N. W. 2d 685, where many cases are cited on this point.)
Finally, counsel for appellees argue that plaintiff cannot recover because of the contributory negligence of Bisoni. This point lacks substantial merit. At best it is a question for the jury.
For the reasons above stated it necessarily follows that the trial court erred in sustaining defendants’ joint demurrer to plaintiff’s amended petition. The judgment of the trial court is reversed with directions to overrule the demurrer.
Thiele, J., dissents from paragraph 2 of the syllabus.