Autry v. Sanders

• Decision Date: 06 April 1943
• Docket Number: 38314
• Citation: 169 S.W.2d 944,350 Mo. 1131
• Parties: F. A. Autry and Laura Autry, Appellants, v. Warren Sanders, Respondent
• Court: Missouri Supreme Court

169 S.W.2d 944

350 Mo. 1131

F. A. Autry and Laura Autry, Appellants, v. Warren Sanders, Respondent

No. 38314

Supreme Court of Missouri

April 6, 1943

Appeal from Howell Circuit Court; Hon. Gordon Dorris Judge.

Affirmed.

W D. Roberts and Gardner & Gardner for appellants.

H D. Green, Jr., A. W. Landis and Arthur W. Allen for respondent.

(1) The plaintiffs, under the Arkansas law, did not make a case for the jury, because the evidence failed to show that Sanders, defendant, operated his automobile "willfully and wantonly in disregard of the rights of others" as this phrase is applied and interpreted by the Supreme Court of the State of Arkansas: Roberson v. Roberson, 101 S.W.2d 961, 793 Ark. 669; Ward v. George, 112 S.W.2d 31, 195 Ark. 216; Froman v. J. R. Kelley Stave Co., 120 S.W.2d 164, 196 Ark. 808; Splawn v. Wright, 128 S.W.2d 248, 198 Ark. 197; Payne v. Fayetteville Mercantile Co., 150 S.W.2d 966, 202 Ark. 504; Edwards v. Jeffers, 162 S.W.2d 472. (2) While this case can only be governed by the decisions of the Supreme Court of Arkansas and must be decided in accordance therewith, yet the following cases from other states, interpreting "Guest Laws" with similar provisions under a similar state of facts, have denied recovery: South Dakota; Granflaten v. Rhode, 283 N.W. 153, 66 S.D. 335; Melley v. Anderson, 266 N.W. 135, 64 S.D. 249. Delaware: Biddle v. Boyd, 199 A. 479, 9 W. W. Harr, 346; Gallagher v. Davis, 183 A. 620, 7 W. W. Harr, 380. Michigan: Sherman v. David, 292 N.W. 464, 293 Mich. 489; Bushie v. Johnson, 295 N.W. 538, 296 Mich. 8; Sherman v. Yarger, 262 N.W. 318, 272 Mich. 644; Schlacter v. Harbin, 263 N.W. 431, 273 Mich. 465; Godley v. Mueller's Estate, 273 N.W. 448, 280 Mich. 203; Quinlan v. Wells, 289 N.W. 135, 291 Mich. 214. Wyoming: Mitchell v. Walters, 100 P.2d 102, 55 Wyo. 317, citing and proving Froman v. J. R. Kelley Stave & Heading Co., 120 S.W.2d 164, 196 Ark. 808. Ohio: Murphy v. Snyder, 27 N.E.2d 152, 630 Ohio App. 423; McCoy v. Faulkenberg, 4 N.E.2d 281; Hottel v. Reed, 33 N.E.2d 1011, 66 Ohio App. 323. Colorado: Millington v. Heidloff, 45 P.2d 937, 96 Colo. 581; Hoover v. Harris, 151 S.W.2d 152; Tennessee case construing Arkansas Guest Law, 177 Tenn. 467; Surgan v. Parker, 181 Mo. 86, Louisiana case construing Arkansas Guest Law; St. Louis S.W. Ry. Co. v. Owings, 204 S.W. 1146, 135 Ark. 56; Hodges v. Smith, 298 S.W. 1023, 175 Ark. 101; Pope's Digest of the Statutes of Arkansas for year 1927; Secs. 1302, 1303, 1304.

OPINION

Hyde, J.

This is an action for $ 10,000.00 for wrongful death of plaintiffs' daughter, while riding as a guest in defendant's automobile. The casualty occurred in Arkansas and defendant's answer set out the provisions of that state's automobile guest act. The jury found for defendant and plaintiffs have appealed from the judgment entered.

Plaintiffs assign error in instructions given at defendant's request; and in excluding evidence offered by plaintiffs. However, defendant contends that plaintiffs failed to make a case of liability under the Arkansas law; that the court should have sustained his demurrer to the evidence; and that the assignments concerning instructions and evidence are immaterial. The applicable statutes (secs. 1302-03-04, Pope's Digest of Statutes of Arkansas -- 1937) are, as follows:

"Section 1302. That no person transported as a guest in any automotive vehicle upon the public highways of this State shall have a cause of action against the owner or operator of such vehicle for damages on account of any injury, death or loss occasioned by the operation of such automotive vehicle unless such vehicle was wilfully and wantonly operated in disregard of the rights of the others.

"Section 1303. The term guest as used in this Act shall mean self-invited guest or guest at suffrance.

"Section 1304. No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, without payment for such transportation, nor the husband, widow, executors, administrators or next of kin of such person, shall have a cause of action for damages against such owner or operator, or other persons responsible for the operation of such car, for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicle, unless such injury shall have been caused by the wilful misconduct of such owner or operator. And in no event shall any person related by blood or marriage within the third degree of consanguinity or affinity to such owner or operator, or the husband, widow, legal representative, or heirs of such person, have a cause of action for personal injury including death resulting therefrom, against such owner or operator while in, entering, or leaving such motor vehicle, provided this Act shall not apply to public carriers." (Our italics.)

These statutes enacted in 1935 (sec. 1304, in a separate bill from the first two sections) were held to be constitutional in Roberson v. Roberson (Ark.), 101 S.W.2d 961. That case (in which plaintiff obtained judgment for $ 5000.00), based on negligence charges of "a defective casing" and "driving said automobile at a high, excessive and dangerous rate of speed," was reversed and dismissed. Defendant argues that the most favorable view of plaintiff's evidence could show no more than gross negligence on the part of defendant, and that this is not sufficient for recovery under the Arkansas statutes.

Plaintiffs' daughter was killed in a collision between defendant's automobile and a truck near the western limits of Crossett, Arkansas, about 8:30 P. M. in May, 1940. Defendant was driving east behind a light truck, called a "pick-up", belonging to the Crossett Lumber Company (defendant was employed by this Company) and driven by one of its employees. Plaintiffs' daughter and Miss Walters, who were riding in the front seat of defendant's car with him, were also employees of the Lumber Company. The highway was paved with "blacktop" and was estimated to be from 16 to 21 feet wide, with a center line painted on it. Defendant stopped his car at a railroad crossing about a mile west of Crossett and the "pick-up" passed him. He then followed the "pick-up" east along the highway, until it slowed down approaching a lighted bus which was stalled at the south edge of the highway more than 200 yards east of the railroad crossing. There were flares placed to show the position of this bus, one about 30 yards in front of it, one about the same distance behind it, and another on the highway near the left rear wheel, which was on the blacktop. The highway was upgrade from the railroad crossing to a point beyond the bus, but was straight for more than a mile. It had been raining and was still sprinkling and was misty and foggy.

Plaintiffs' evidence (the driver of the "pick-up," the driver of the truck involved in the collision, and also two men who came to the scene of the collision afterwards to move the cars) was to the effect that the "pick-up" (traveling east) passed the truck (traveling west) before the "pick-up" reached the bus (west of it), and without crossing the center line of the highway. It also showed that defendant's car, following the "pick-up," 50 yards or more behind it, came across the center line and ran into the truck about 75 to 100 yards west of the bus. The truck driver estimated that defendant's car was traveling at least 40 miles per hour. The truck driver said that when he saw defendant's car angling across the center line he pulled to the right and stopped with part of the front end of his truck off the blacktop before the collision occurred. After the collision, the car and the truck were found with both of their front wheels on the north shoulder of the highway off the blacktop. They were locked together with only the left rear wheel of each on the pavement. The driver of the "pick-up" saw the headlights of the truck and there is no claim they were not lighted.

According to defendant's testimony, the "pick-up" slowed down and came almost to a stop at the flare west of the bus and then pulled to the left (north) to go around the flares. Defendant said he had come to a complete stop and shifted to low gear to follow the "pick-up" around the bus. He said that the "pick-up" was a little over the left of the center line as it went around the bus and that his car was in the same position, about 100 feet back of it, not traveling over 15 miles per hour. He saw the "pick-up" turn back to the south side of the pavement, but said he never saw the lights of the westbound truck and did not know it was approaching until he was knocked unconscious by the collision. Defendant said the flares around the bus gave a very bright light. Miss Walters and some of the men riding in the "pick-up" substantially corroborated defendant's account. Plaintiffs' evidence fixed the place of the collision about 100 yards west of the bus, while defendant's evidence tended to show it was much closer to it.

Plaintiffs argue thus: "We submit that such conduct discloses more than ordinary negligence. It discloses more than gross negligence. It was wilful and wanton. He admits turning his car to the left on to the westbound traffic lane; hence, there can be no question that that part of his act was wilful. He makes no attempt to show that he was confused, or that the turning of his car on to the westbound traffic lane was accidental or unintentional. . . . The truck with lights plainly visible was approaching from the east along this level stretch of highway somewhere between him and the "pick-up" which had gone on east. He admits a movement of his car which would inevitably carry him into the path of imminent danger."

Thus plaintiffs' position is that knowingly and...