Dennis v. Wood

• Citation: 211 S.W.2d 470,357 Mo. 886
• Decision Date: 12 April 1948
• Docket Number: 40432
• Parties: Bessie K. Phillips Dennis v. Guy W. Wood, Appellant
• Court: United States State Supreme Court of Missouri

211 S.W.2d 470

357 Mo. 886

Bessie K. Phillips Dennis v. Guy W. Wood, Appellant

No. 40432

Supreme Court of Missouri

April 12, 1948

Opinion Modified and Motion for Rehearing or to Transfer to Banc Overruled May 27, 1948.

Appeal from Jackson Circuit Court; Hon. John F. Cook Judge.

Affirmed.

E R. Morrison, Henry W. Buck and W. H. Hoffstot for appellant; Morrison, Nugent, Berger, Hecker & Buck of counsel.

(1) The court erred in sustaining plaintiff's motion for new trial because her evidence convicts her of contributory negligence as a matter of law and therefore no verdict for plaintiff would be permitted to stand. Curtiss v. Fahle, 157 Kan. 226, 139 P.2d 827; Crowe v. Moore, 144 Kan. 794, 62 P.2d 846; Naglo v. Jones, 115 Kan. 140, 222 P. 116; Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43; Peoples Finance Corp. v. Buckner, 344 Mo. 347, 126 S.W.2d 301; Ferguson v. Lang, 126 Kan. 273, 268 P. 117; Darrington v. Campbell, 150 Kan. 407, 94 P.2d 280; Earhart v. Tretbar, 148 Kan. 42, 80 P.2d 4; Bush v. Union Pac. R. Co., 62 Kan. 709, 64 P. 624; Sharp v. Sproat, 111 Kan. 735, 208 P. 613; Donelan v. Wright, 148 Kan. 287, 81 P.2d 50; Shrewsbury v. Goodacre, 135 Kan. 230, 10 P.2d 1; McComas v. Clements, 137 Kan. 681, 21 P.2d 895; Skirvin v. McKamey, 237 S.W. 858; Arel v. First Natl. Fire Ins. Co., 195 Mo.App. 165, 190 S.W. 78; Mayhew v. Travelers' Protective Assn. of Am., 66 S.W.2d 199; Gray v. Union Electric L. & P. Co., 282 S.W. 490. (2) The court erred in granting plaintiff a new trial because, as a matter of law, plaintiff was a guest within the Kansas guest statute and failed to prove defendant was grossly and wantonly negligent as required by that statute. General Statutes of Kansas, 1935, Sec. 8-122b; Pilcher v. Erny, 155 Kan. 257, 124 P.2d 461; Vogrin v. Bigger, 159 Kan. 271, 154 P.2d 111; Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573; Elliott v. Behner, 146 Kan. 827, 73 P.2d 1116; LeClair v. Hubert, 152 Kan. 706, 107 P.2d 703; Elliott v. Peters, 185 P.2d 139; Aduddell v. Brighton, 141 Kan. 617, 42 P.2d 555; Donelan v. Wright, 148 Kan. 287, 81 P.2d 50. (3) The granting of a new trial on the ground that the verdict is against the weight of the evidence is an arbitrary and unjudicial abuse of discretion where, as in this case, the evidence conclusively shows that no verdict in favor of plaintiff would be permitted to stand. Sutter v. Met. St. Ry. Co., 188 S.W. 65; Roberts v. Missouri & K. Tel. Co., 166 Mo. 370, 66 S.W. 155; Borack v. Mosler Safe Co., 288 Mo. 83, 231 S.W. 623; Lyons v. Corder, 253 Mo. 539, 162 S.W. 606; Graney v. St. Louis, I.M. & S. Ry. Co., 157 Mo. 666, 57 S.W. 276; Hoyland Flour Mills Co. v. Missouri Pac. R. Co., 222 Mo.App. 599, 5 S.W.2d 125; Reardon v. White, 239 S.W. 162; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Scott v. Kline's, Inc., 284 S.W. 831; Foley v. Harrison, 233 Mo. 460, 136 S.W. 354; Casey v. St. Louis Transit Co., 186 Mo. 229, 85 S.W. 357; Riche v. St. Joseph, 326 Mo. 691, 32 S.W.2d 578; Akin v. Hull, 277 S.W. 962; Ottomeyer v. Pritchett, 178 Mo. 160, 77 S.W. 62.

John G. Madden, Harry R. Freeman and Ralph M. Russell for respondent; Madden, Freeman, Madden & Burke of counsel.

(1) Plaintiff was a fare-paying passenger, and not a guest, within the meaning of the Kansas guest statute. Kansas Guest Statute (General Statutes of Kansas, 1935, Sec. 8-122b; Pilcher v. Erny, 155 Kan. 257, 124 P.2d 461; Vogrin v. Bigger, 159 Kan. 271, 154 P.2d 111; Peccolo v. Los Angeles, 8 Cal. (2d) 532, 66 P.2d 651; Jensen v. Hansen, 55 P.2d 1201; Parrett v. Carothers, 53 P.2d 1023; Rogers v. Price, 117 Kan. 181; Elliott v. Behner, 146 Kan. 827, 73 P.2d 1116; LeClair v. Hubert, 152 Kan. 706, 107 P.2d 703; Restatement of the Law, Torts, sec. 490, comment a; Bryan v. Enyart, 168 P.2d 89. (2) Plaintiff was not guilty of contributory negligence as a matter of law. Henderson v. Natl. Mutual Casualty Co., 164 Kan. 109; Curtiss v. Fahle, 157 Kan. 226, 139 P.2d 827; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Restatement of the Law, Torts, sec. 495, comment on clause (c). The action of the trial court in sustaining the motion for new trial against the weight of the evidence was a clear exercise of his judicial discretion, was not arbitrary, and should not be disturbed. James v. LaMear, 194 S.W.2d 915; Reichmuth v. Adler, 155 S.W.2d 181.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Bessie K. Phillips Dennis instituted this action against Guy W. Wood for $ 20,000 damages on account of injuries suffered while a passenger in defendant's automobile in a collision with a Ford automobile in the state of Kansas. The law of Kansas applies. Mrs. Dennis was single at the time of her injury, being Miss Phillips. The jury returned a verdict for defendant. Thereafter, the court sustained plaintiff's motion for a new trial on the ground the verdict was against the weight of the evidence and for error in one of defendant's instructions. Defendant appeals and presents the principal contention that plaintiff failed to make a submissible case on two grounds: First, that plaintiff was defendant's guest and under the Kansas statute defendant was not guilty of "gross and wanton negligence." Second, that plaintiff was guilty of contributory negligence as a matter of law.

The Kansas automobile guest statute (Sec. 8-122b, Kan. G.S. 1935) 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."

The issue under the statute turns on whether plaintiff was a guest or a fare-paying passenger as plaintiff claims defendant was guilty of ordinary negligence and presents no contention involving "gross and wanton negligence."

The Supreme Court of Kansas has not ruled the precise issue here; i.e., the effect of a share-the-ride agreement during World War II upon the Kansas guest statute. Defendant stresses the portion italicized by the writer in the following from Pilcher v. Erny, 155 Kan. 257, 124 P. 2d 461, 464[4]: "It would not do to exempt carriers for hire from liability for such damages so the provision making an exception in cases where the guest paid for his transportation was written into the statute. The intention was, however, that the exception should apply only where the payment was the chief motivating cause for the trip or carriage, not to a case such as we have here where the trip would have been made in any event by the driver of the car, and the plaintiff was in the car, in the main, on account of a desire on the part of the defendant to be accommodating and to extend the hospitality of his car to her and her son." The facts involved were: Defendant had a paper route which took him from Hutchinson to Stafford and other points. Plaintiff, a seamstress of Hutchinson, had repaired defendant's coat, the charge being $ 1.25. When defendant asked her if she cared to go to Stafford, she answered in the affirmative for herself and her son, and said to let the $ 1.25 go on the expenses of the trip. Defendant answered he was going anyway and would take them without charge. She insisted upon applying the $ 1.25 on the expenses and he answered, if she wanted it that way, all right. She was injured while riding with him on the way from her residence to "Ma Lundreys" to get some sandwiches "for the mutual pleasure of plaintiff and defendant," which was no part of the proposed trip to Stafford. The two intended coming back to a skating rink for plaintiff's son. The quotation supra is in connection with a discussion as though the injury occurred on the trip from Hutchinson to Stafford and has been followed in later Kansas cases, including Vogrin v. Bigger, 159 Kan. 271, 154 P. 2d 111, 113, also stressed by defendant. Srajer v. Schwartzman (Kan.), 188 P. 2d 971, 974[2, 3], is a late case following the Pilcher and Vogrin cases. Plaintiff there attempted to avoid the guest statute by establishing a "joint venture" between two cattle owners on the theory they had agreed to ship a "mixed load of cattle" to a sales pavilion for sale for their mutual benefit in saving costs of transportation. One, Srajer, died as the result of injuries received on the way to the sale while riding in the other's coupe. The men were not joint owners of the cattle but each owned the particular cattle coming from his farm, and the joint enterprise, if one existed under the evidence, was restricted to the transportation of the cattle and did not extend to Schwartzman's transportation of Srajer. However, in the course of that opinion, the court said: "We agree with appellant's contention that payment for transportation in money is not necessary in order to keep a passenger from being a guest passenger, within the meaning of that statute. But there must be a substantial consideration of some sort moving to the operator or owner of the vehicle." This is in harmony with the earlier cases of Elliott v. Behner, 146 Kan. 827, 73 P. 2d 1116, 1119[2]; and Le Clair v. Hubert, 152 Kan. 706, 107 P. 2d 703, 704[1], which are distinguished in Vogrin v. Bigger, supra, on the facts.

Plaintiff and defendant resided in Kansas City, Missouri. They were employees of the Sunflower Ordinance Plant near De Soto Kansas, 35 miles southwest of Kansas City. When first employed, defendant drove back and forth alone, but authorities in charge of the War effort informed him he would have to carry passengers to secure the necessary ration stamps for gasoline and tires. He agreed to this, and, in addition to his "A"...