Allen v. Keck

• Citation: 212 F.2d 425
• Decision Date: 28 April 1954
• Docket Number: No. 14972.,14972.
• Parties: ALLEN v. KECK.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

212 F.2d 425 (1954)

ALLEN v. KECK.

No. 14972.

United States Court of Appeals, Eighth Circuit.

April 28, 1954.

J. D. James, Kansas City, Mo. (John W. Schwartz and Hogsett, Depping, Houts & James, Kansas City, Mo., on the brief), for appellant.

Martin J. Purcell, Kansas City, Mo. (Henry W. Buck and Morrison, Hecker, Buck, Cozad & Rogers, Kansas City, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from a summary judgment entered in favor of appellee in an action brought by appellant to recover damages for the wrongful death of her husband caused by the alleged negligence of appellee, D.C., 113 F.Supp. 873. The parties will be referred to as they appeared in the trial court. In her complaint plaintiff alleged that she was the surviving widow of Claude M. Allen, deceased; that on December 30, 1951, said Claude M. Allen was riding as a passenger in an automobile then and there being driven by defendant Willard F. Keck at a point on a public highway near Overland Park in the State of Kansas when defendant negligently caused and permitted said automobile to run off the highway on the left-hand side thereof and to crash into a bridge abutment resulting in the death of deceased; that at the time of the aforesaid collision the defendant and his wife and the plaintiff and the deceased were on their way to Pleasanton, Kansas, on a hunting trip; that it was mutually agreed and understood before the trip was undertaken that expenses would be shared equally, that the task of driving would be shared equally, that the deceased would take defendant to the farm of the cousin of deceased and gain admittance to said farm for the purpose of hunting squirrels thereon; that they would share equally in any game resulting from the hunting trip; that they would each have an equal right to control the direction and route taken, and all other details of the trip such as starting and stopping. There were also allegations going to the measure of damages.

The defendant in his answer admitted that plaintiff was the widow of Claude M. Allen, deceased, denied the allegations of negligence, admitted the jurisdictional facts pleaded and admitted that Claude M. Allen was an occupant of defendant's automobile driven by defendant at the time of the accident. He then pleaded affirmatively that the accident referred to in plaintiff's complaint occurred in the State of Kansas and that the statutes and decisions of the State of Kansas governed and controlled plaintiff's alleged cause of action and the status of plaintiff's deceased husband while an occupant of defendant's automobile at that time and place.

The only witnesses having knowledge of the facts and circumstances under which the accident occurred or the trip undertaken were the plaintiff, the defendant and defendant's wife who were occupants of the automobile at the time the accident occurred. In due course the depositions of these witnesses were taken and filed following which the defendant moved for summary judgment based upon the pleadings and the facts as disclosed by the depositions of the only known witnesses. It appeared from these depositions without material dispute or conflict that Mr. and Mrs. Allen and Mr. and Mrs. Keck had been intimate friends of long standing. They had made frequent social trips together, some of these trips being extensive while others were for short distances. It was their custom to go together in one car and they alternately used the car of Mr. Allen or Mr. Keck. It was also their custom that the person whose car was not used paid the gasoline bill during the trip, each couple paying its own other traveling expenses. At the time of the tragic accident here involved Mr. and Mrs. Allen were residents and citizens of Kansas City, Missouri, while Mr. and Mrs. Keck were residents and citizens of Kansas City, Kansas.

Mr. and Mrs. Keck had relatives in Pleasanton, Kansas, and they had planned to visit them on Christmas and with that in view they had certain Christmas presents wrapped into various packages. On account of stormy weather they were prevented from going to Pleasanton at Christmas time. On the evening of December 28, 1951, Mr. and Mrs. Allen visited at the Keck home where they engaged in a social game of pinochle and during the conversation at that time Mrs. Keck mentioned the fact that they had been prevented from making their contemplated trip to Pleasanton at Christmas time and that they had decided to go the following Sunday, December 30, 1951, to make a belated delivery of their Christmas presents. The Allens also had relatives in Pleasanton, Kansas, and when Mrs. Keck disclosed the fact that they were going to Pleasanton on the following Sunday the Allens said they too were going to visit their relatives in Pleasanton. It was then agreed that there was no reason for taking two cars and that they would go together. There was also some general discussion with reference to hunting in the vicinity of Pleasanton.

On Sunday morning, December 30, 1951, they met at a point agreed upon in Kansas City, Kansas, each family in its own car and there a discussion took place as to whose car should be taken. It seemed to be conceded that considering the question of alternating in the driving of their cars to Pleasanton it was defendant's turn to take his car. There was a friendly discussion as to which car should be taken but in view of the fact that defendant's car was loaded with Christmas presents which the Keck's were taking to their relatives in Pleasanton it was argued that it would require the transfer of those articles to the Allen car and that it would be less trouble to take the defendant's car and it was so decided. The parties had customarily made similar trips to Pleasanton several times a year and the custom was that the party whose car was not driven paid for the gasoline used on these social trips. There was, however, no discussion as to who should pay for the gasoline but it was mutually understood that Mr. Allen would, according to their custom, pay for the gasoline. For the contemplated trip no gasoline had been purchased by Mr. Allen prior to the accident in which he was killed. There was evidence that the Keck's had definitely decided to make this trip to Pleasanton and that they would have done so whether the Allens accompanied them or not. The evidence will be further developed in the course of this opinion.

The trial court on consideration of motion of defendant for summary judgment based upon the pleadings and the complete testimony of all the witnesses as shown by their depositions on file was of the view that there was no genuine issue as to any material fact involved and being of the view that plaintiff's husband was at the time of the accident a guest of the defendant within the purview of the Kansas so-called guest statute as construed by the Supreme Court of Kansas entered summary judgment dismissing plaintiff's action on its merits.

Plaintiff contends here as she did in the trial court that whether or not her husband was a guest of defendant at the time of the accident causing his death presented a substantial question of fact to be decided by a jury. She further contends that the defendant and her husband were engaged in a joint enterprise at the time of the accident and hence the Kansas guest statute was not applicable.

A motion for summary judgment does not call for a trial of the issues on the merits but for an inquiry to determine whether or not there are any genuine issues as to any material facts. The nature of the proceeding is outlined by us in Hurd v. Sheffield Steel Corp., 8 Cir., 181 F.2d 269, 271, wherein it is said:

"The proceeding on motion for summary judgment is not a trial but in the nature of an inquiry in advance of trial for the purpose of determining whether there is a genuine issue of fact. Rule 56, Federal Rules of Civil Procedure, 28 U.S. C.A., contemplates prompt disposition of an action where there is in fact no genuine issue, thus avoiding the necessity of a futile trial. Either party may move for summary judgment — the plaintiff at any time after the answer has been served, and the defendant at any time after claim has been asserted against him. The burden of proof is on the moving party and the rule (56(e)) requires that affidavits supporting or opposing a motion for summary judgment shall be made on personal knowledge and set forth such facts as would be admissible in evidence and which show that the affiant is competent to testify to the facts recited in the affidavit. If it appears from the pleadings, affidavits, admissions or depositions that there is no genuine issue as to any material fact and that the issue is one of law, then if the law so warrants a summary judgment should be entered. The question of the sufficiency of the evidence raises an issue of law, and if, under the facts, the court would be required to direct a verdict for the moving party, then a summary judgment should be granted. Ramsouer v. Midland Valley R. Co., 8 Cir., 135 F.2d 101; Parmelee v. Chicago Eye Shield Co., 8 Cir., 157 F.2d 582, 168 A.L.R. 1130; Sprague v. Vogt, 8 Cir., 150 F.2d 795; Eller v. Paul Revere Life Ins. Co., 8 Cir., 138 F.2d 403, 149 A.L.R. 1191; Gifford v. Travelers Protective Ass\'n, 9 Cir., 153 F.2d 209."

In the instant case the court had before it for evaluation the sworn testimony of all the witnesses each of whom was subjected to cross-examination by counsel for the opposing party.

The accident happened in the State of Kansas and jurisdiction is based on diversity of citizenship, the requisite jurisdictional amount being involved. The substantive law of the State of Kansas is therefore applicable.

At and for a long time prior to the happening of the accident here under consideration the State of Kansas had adopted and there was in force in that state the so-called guest statute. This...