Fessenden v. Smith

• Decision Date: 12 November 1963
• Docket Number: No. 51048,51048
• Citation: 255 Iowa 1170,124 N.W.2d 554
• Parties: Rex F. FESSENDEN, as Father and next friend of Rosemary Fessenden, a Minor, and Rex F. Fessenden, Appellants, v. Clark SMITH and Arthur W. Smith, Appellees.
• Court: Iowa Supreme Court

Page 554

124 N.W.2d 554

255 Iowa 1170

Rex F. FESSENDEN, as Father and next friend of Rosemary Fessenden, a Minor, and Rex F. Fessenden, Appellants, v. Clark SMITH and Arthur W. Smith, Appellees.

No. 51048.

Supreme Court of Iowa.

Nov. 12, 1963.

Rehearing Denied Jan. 14, 1964.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellants.

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, and Gale Braithwaite, Sioux Falls, S. D., for appellees.

HAYS, Justice.

This is an action for damages brought by a minor by her next friend for injuries she sustained while riding in a car being driven by defendant Clark Smith with the consent of its owner, defendant Arthur W. Smith. The accident happened near Canton, South Dakota. All parties concerned are residents of Sioux City, Iowa. The petition was in four counts and alleges negligence and also willful and wanton negligence. At the close of plaintiff's evidence the trial court sustained a motion to direct a verdict for defendants and dismissed the petition.

I. The first question to be determined is what state's laws govern, Iowa or South Dakota. The trial court held the case must be governed by the laws of South Dakota. This is assigned as error.

While appellant devotes several pages of its argument on this issue, it admits that the trial court applied the law now in effect in this state and generally elsewhere. See Re-statement of the law of Conflict of laws, sec. 377 and sec. 378; Redfern v. Redfern, 212 Iowa 454, 236 N.W. 399; Kingery v. Donnell, 222 Iowa 241, 268 N.W. 617. It applied the laws of South Dakota under the rule that where a tort is committed in a foreign state and an action is brought in another state for such tort, the substantive rights of the parties are to be determined by the laws of the state where the tort was committed. This may be qualified by stating the above is true unless rights granted restricted in the other state are deemed to be unconstitutional or against public policy in the forum state. Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.W.2d 526; Koplik v. C. P. Trucking Corp., 27 N.J. 1, 141 A.2d 34; Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814; Hayme v. Hanson, 16 Wis.2d 299, 114 N.W.2d 443, all cited by appellant on this question are not contrary to the general rule, above stated, that ordinarily, substantive rights of parties to an action in tort are to be determined in light of law of place of wrong.

Appellant's position is stated to be: 'The right of a guest to recover from his host should likewise be determined, by the law of the place in which the parties resided and in which the relationship of guest and host was created rather than by the accident'. See dissenting opinion in Babcock v. Jackson, 17 A.D.2d 694, 230 N.Y.S.2d 114. This theory, which is advocated by appellant, is designated as 'the most significant contacts with the matter in dispute' rationale as it would be applied to guest statutes and appears to be a new and advanced frontier as to this phase of the law. We appreciate the fact that this court is invited to be the first American jurisdiction to adopt such rationale but feel that the existing rule is sound and stable and see no reason for a change to such rationale. The court did not commit error in applying the South Dakota statutes.

II. Appellant contends the evidence creates a jury question as to whether plaintiff was a guest in the Smith car.

Section 44.0362, South Dakota Code, 1939, provides: 'No person transported by the owner or operator of a motor vehicle as his guest without compensation for such transportation shall have cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the willful and wanton misconduct of the owner or operator of such motor vehicle, and unless such willful and wanton misconduct contributed to the injury, death or loss for which the action is brought; and no person so transported shall have such cause of action if he has willfully or by want of ordinary care brought the injury upon himself'.

In Gunderson v. Sopiwnik, 75 S.D. 402, 66 N.W.2d 510, the Supreme Court of South Dakota, quoted from Schiltz v. Picton, 66 S.D. 301, 282 N.W. 519, as follows: 'While it might be that under this statute (Sec. 44.0362 Code of S. D., supra) actual payment in money or other tangible thing is not necessary to exclude one from its terms and render one not a guest, nevertheless, we believe that the statute contemplates some benefit accruing from the transportation to the owner or operator of the motor vehicle in order to render a passenger in a motor vehicle not a guest. Such benefits as are compatible with hospitality, companionship or good fellowship accruing to the owner or operator are not sufficient to take the passenger out of the guest classification.'

The record is clear to the effect that plaintiff, Rosemary Fessenden, made no payment or gave any compensation to the driver or to the owner of the car. Unless and except for the theory of agency which is advanced by appellant and which we will immediately discuss, we think it a fair statement to say that Rosemary Fessenden was a guest within the terms of the statute and so recognized by appellants.

Appellants' position is stated in argument to be 'that a benefit inuring to Heelan High School as a consequence of the transportation furnished by it permits recovery for Clark Smith's ordinary negligence. In other words, appellant contends that Clark Smith was an agent of and operating the car for the benefit of Heelan High School; that the transportation of Rosemary was a benefit to Heelan High School and hence was outside the provisions of Section 44.0362, supra.

Bearing upon this theory, the record shows: Rosemary Fessenden was a student and a cheerleader at Heelan High School in Sioux City....