Brown v. Seltzer

• Decision Date: 15 February 1968
• Docket Number: No. 15224,15224
• Parties: S. C. BROWN et al., Appellants, v. William A. SELTZER, Appellee. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 671

424 S.W.2d 671

39 A.L.R.3d 1217

S. C. BROWN et al., Appellants, v. William A. SELTZER, Appellee.

No. 15224.

Court of Civil Appeals of Texas.

Houston (1st Dist.).

Feb. 15, 1968.

Rehearing Denied March 7, 1968.

McNicholas & Crawford, Walter J. Crawford, Jr., Beaumont, for appellants.

Orgain, Bell & Tucker, Beaumont, for appellee; John G. Tucker, Gilbert I. Low, Beaumont, of counsel.

COLEMAN, Justice.

This is a suit for damages brought by appellants, the mother and father of one Troy Brown, who was killed when the automobile in which he was a passenger collided with a highway signpost.

Appellants contend that the trial court erred in the manner by which requirements of the Texas Guest Statute (Article 6701b, Vernon's Ann.Tex.Civ.St.) were submitted to the jury, and also in applying the substantive law of Texas (Article 6701b, V.A.T.S.) since the State of New York had the most 'significant contacts' with the transaction and parties involved in the occurrence made the basis of this suit.

On or about July 28, 1965, appellee, accompanied by Troy S. Brown and Jay Kalotkin, was traveling in an automobile, owned by appellee's mother, on Interstate Highway No. 10 in Chambers County, Texas. Appellee was driving the automobile. As he was attempting to pass an automobile in front of him, he applied his brakes and his car skidded sideways into a signpost adjacent to the right hand lane of the highway. The collision cut the car in half. Appellee was thrown from the car and was not injured. Both Brown and Kalotkin were killed.

Seltzer and Kalotkin were domiciliaries of the State of New York, as was the owner of the car. Brown was a resident of California, and had been attending college in that State. Some months previously he had sold his car and had used the proceeds to make an extended trip to Europe. On May 1, 1965, he returned to New York, and secured work in a lodge in upstate New York in order to get enough money to return to California. About two weeks before the date of the collision he met Kalotkin and Seltzer.

The only information concerning the trip and the plans preceding it necessarily comes from the testimony of Seltzer. He testified that the trip to Mexico came up after he met Brown. In describing the plan he said: 'Well, our destination was Mexico. We were going to sightsee, you know, spend some time at the beach, travel around Mexico a little bit. Nothing specific. We planned, you know, day by day, what you call it.'

They had decided that they would like to see Acapulco and Mexico City, but they had not decided just where they would go first and all details were subject to change. They had not worked out the route for the trip. Seltzer furnished the car, but all three boys shared the expense for gasoline and oil. Each boy would pay for his own food and lodging. Brown planned to fly from Mexico to California and the other boys were going to take a leisurely sightseeing trip back through the United States to New York. There was testimony that Brown's family expected him to reach California around the 25th of July.

After they began the trip, each boy alternated between driving, sleeping, and navigating, that is, reading the road maps, watching for road signs, and talking to the driver. Prior to the collision they had been on the road about 36 hours. They had made a number of stops for gasoline, food and coffee. They had stopped in Beaumont, Texas, for several hours to visit a relative of Kalotkin a short time before the collision.

Appellee testified that he would not have made the trip if he had not found these boys to share the expense and driving, and that each boy had an equal 'say' as to the route to be followed. He agreed that 'everyone carried his equal load as far as the driving and control of the car.' There was testimony that Brown had in his wallet a voucher for a refund on an airline ticket from New York to San Francisco, which he had returned, and a ticket 'that had an open date on it to fly from Mexico City to San Francisco.'

Appellants contend that the substantive law of New York should have been followed by the trial court because New York is the state having the most significant total relationship with this trip. The doctrine of most significant contacts holds that the most significant relationship with the occurrence, and with the parties, should determine the rights and liabilities of the parties. This is clearly contrary to the general rule followed in Texas that the courts look to the law of the place where the wrongful act or neglect took place. Marmon v. Mustang Aviation, Inc., 416 S.W.2d 58 (Tex.Civ.App., Austin 1967, writ granted).

In the case above cited Justice O'Quinn carefully reviewed the applicable authority and found much merit in the doctrine under consideration. We are in full agreement with this carefully considered opinion and can add nothing to it by again discussing the authorities. We do not consider that this Court is free to repudiate prior decisions of the Supreme Court of Texas despite the fact that it has granted a writ of error in the case cited. In view of this fact, however, it is appropriate to consider facts which distinguish this case from Marmon v. Mustang Aviation, Inc., supra.

Troy Brown was a resident of California, and appellants are also residents of California. The defendant is a resident of New York. Art. 4678, V.A.T.S., is not applicable to this case. Appellants choose to bring this suit in Texas under the Texas wrongful death statute (Art. 4671, V.A.T.S.). The public policy of Texas with reference to actions by guests has been declared by the legislature in the enactment of Art. 6701b, V.A.T.S., generally known as the 'guest statute'. This statute requires a finding of gross negligence for a recovery in such an action. In the decisions applying the significant contacts doctrine, to which we have been cited, the court was applying the public policy of its state by invoking the law of the forum in preference to the lex loci delicti, which was contrary to its public policy. Macey v. Rozbicki, 18 N.Y.2d 289, 221 N.E.2d 380 (1966); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964); Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279 (1963).

We recognize that public policy of the state of Texas should not be the prime consideration in determining whether or not the guest statute of this State should be enforced in the event an action is brought in this State to enforce a right of action which accrued under the laws of another state. We cannot say that to enforce a cause of action by a guest against his host based on simple negligence would be against good morals or natural justice, or that for some other such reason the enforcement of such a cause of action would in all such cases be prejudicial to the general interests of our own citizens. State of California v. Copus, 309 S.W.2d 227 (Tex .Sup.1958); McElreath v. McElreath, 345 S.W.2d 722 (Tex.Sup.1961).

In this case, however, the cause of action accrued in Texas and the suit has been filed in the courts of Texas. The state of the forum is applying its own law to a cause of action arising within the State. No conflict of laws problem appears. We find no sound reason for ignoring the public policy of the State as determined by the legislature of this State. Kell v. Henderson, 26 A.D.2d 595, 270 N.Y.S.2d 552 (S.Ct., Appellate Div., 3rd Dept., N.Y.1966).

The remaining points of error concern the manner in which issues relating to the Texas guest statute were submitted to the jury.

The burden of proof was on appellants to prove all elements of their case. Estate of Coggins v. Livingston, 411 S.W.2d 646 (Tex.Civ.App., Beaumont 1967, n.w.h.). As an element of a passenger case when he sues the driver of an automobile, he must show that he was not a guest as contemplated by the guest statute, or that the driver was guilty of gross negligence. Fuller v. Wainwright, 415 S.W.2d 234 (Tex.Civ.App., El Paso 1967, n.w.h.). Issues were submitted to the jury in answer to which the jury found that Troy Brown was a guest. Appellants did not plead gross negligence, or request issues on that theory of recovery. Appellants did object to the definition of the word 'guest' given in connection with the issue submitted, and also requested the submission of certain issues which they suggest would negative the relationship of host and guest . These issues were refused.

There is evidence that the parties to the trip had agreed to share expenses and to share the driving of the automobile. The first Texas case to determine whether or not an agreement to share operating...