Foster v. Leggett

• Decision Date: 09 June 1972
• Citation: 484 S.W.2d 827
• Parties: Carole FOSTER, Administratrix of the Estate of Helen Louise Stringer, Deceased, Appellant, v. John I. LEGGETT, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 827

484 S.W.2d 827

Carole FOSTER, Administratrix of the Estate of Helen Louise Stringer, Deceased, Appellant, v. John I. LEGGETT, Appellee.

Court of Appeals of Kentucky.

June 9, 1972.

Frank K. Warnock, Greenup, for appellant.

Charles M. Daniels, Greenup, for appellee.

C. R. WALDEN, Special Commissioner.

Appellant, plaintiff below, prosecutes this appeal from a summary judgment against her, in her capacity as personal representative, in an action to recover damages for the wrongful death of her decedent.

On September 9, 1967, appellant's decedent, while a guest passenger in an automobile owned and operated by appellee, was killed in a traffic accident north of Portsmouth, Ohio, on U.S. Route No. 23, a four-lane divided highway. Appellant administratrix filed suit in the Greenup County Circuit Court seeking to recover damages for the wrongful death of deceased and burial expenses, alleging both ordinary and gross negligence in the operation of the automobile by appellee. Appellee was before the court on personal service.

Appellee answered the suit, and, among other matters, pleaded section 4515.02 of the Ohio Revised Code, commonly known as the Guest Statute, which provides, in substance, that a nonpaying guest cannot recover damages for injury or death from the owner-operator of a motor vehicle, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner, or person responsible for the operation of said motor vehicle.

Appellee's deposition revealed that he was forty-seven years of age, both he and decedent were divorced and both of them were employed by the C & O Railroad and worked in the same office at Russell, in Greenup County, Kentucky. They had been so associated in this work for several years. The deceased, Mrs. Stringer, had lived all her life in Greenup County, Kentucky. Appellee, for a while in the 1930's, had lived in Greenup County, but at the time of the accident, and for several years prior thereto, he had lived in Portsmouth, Ohio, across the Ohio River from Russell, Kentucky. Appellee made his home with his parents in Portsmouth, voted, paid taxes, licensed his automobile, and did his banking and other such activities as would indicate legal domicile in the State of Ohio. In fact, counsel are agreed that at the time of the accident on September 9, 1967, appellee was legally domiciled in the State of Ohio. Over the years, for convenience, appellee had often stayed at the Russell Y.M.C.A. For about one year prior to the accident appellee had kept a room rented at the 'Y' by the week. He stayed in this room about two nights a week, on the average. Appellee and Mrs. Stringer had been dating for several months. The day before the fatal accident they played golf. At this time it was planned and agreed that the next day they would go to Columbus, Ohio. Appellee was to transact some business, the deceased wanted to shop, they would have dinner, go to a show or the races, and return to Russell the night of the same day. Pursuant to this plan, appellee spent the night in his room at the 'Y' and the next morning, drove his 1966 Dodge automobile, picked up decedent at her home and they proceeded on their journey to Columbus, Ohio. It was raining and the highway was wet. They were traveling on U.S. Highway No. 23, a four-lane highway, two lanes north and two lanes south, divided by a twelve-foot grassed median. A short distance north of Portsmouth, appellee, in attempting to pass a vehicle, lost control of his automobile and crossed the medican into the path or lane of a vehicle going south on the highway. Mrs. Stringer and the driver of this southbound vehicle were killed.

Both appellant and appellee filed motions for summary judgment. The trial court overruled appellant's motion and sustained appellee's motion and dismissed the complaint. The basis of the trial court's ruling is as stated in the court's findings of fact and conclusion of law that the Guest Statute of the State of Ohio should apply, and there being no evidence of any wilful or wanton misconduct on the part of appellee, as a matter of law appellant could not recover.

The question to be determined is whether the law of Ohio or the law of Kentucky applies in this case.

Counsel for appellee recognizes that in the case of Wessling v. Paris, Ky., 417 S.W.2d 259 (1967), we very substantially departed from the age-old and almost universal doctrine that liability for torts was governed by the law of the place where the tort occurred (lex loci delicti), as stated in Ansback v. Greenberg, Ky., 256 S.W.2d 1 (1952). In Wessling we stressed the fact that to continue to follow the old rule, though simple, avoids and ignores the necessity of examining the true relationship of the parties and other considerations which may well be more consonant with a proper and just result. In Wessling, as appellee points out, we recognized that the facts of that case presented a simple case and no common sense reason could be advanced for holding otherwise, but for the time being we would limit the application of the rule to very clear cases, such as were the facts in Wessling. We never intended to hold that the rule never again would be extended or applied unless the facts were identical with the facts in Wesling.

In the case of Arnett v. Thompson, Ky., 433 S.W.2d 109 (1968), a couple of Ohio residents, husband and wife, were involved in an automobile accident in Kentucky. The wife sued her husband to recover damages for her personal injuries. The husband, claiming the law of the State of Ohio was applicable, pleaded the Ohio Guest Statute and in addition thereto pleaded the common law of Ohio which denied the wife the right to sue her husband for a tort, thus raising a 'double barrel' conflict question. In denying the husband's argument, we held that the conflicts question should not be determined on the basis of 'weighing of interest' as we had done in Wessling, but on the basis of whether Kentucky had 'enough' or 'sufficient' contacts to justify applying Kentucky law. We thus held the fact that the accident occurred in Kentucky was, standing alone, enough contact to justify the application of the law of Kentucky. In considering our opinions in Wessling and Arnett, it may be proper to raise the question if we have accepted the rule of 'most significant contacts' (Restatement of Law 2d, Conflicts of Law 2d, section 146) to apply to Kentucky residents involved in another state and the rule of 'enough contacts' for residents of other states involved in Kentucky. Such is not the holding or policy of this court.

It is correct to say that we have abandoned the pure lex loci rule as enunciated in Ansback v. Greenberg, Ky., 256 S.W.2d 1 (1952), and numerous prior decisions, for the simple reason that it is unfair and unjust to defeat the legitimate and reasonable rights of the parties, without regard to the circumstances and facts of the particular case, and in order to follow an antiquated rule of law that is now, and always has been, highly controversial. Cases from other jurisdictions, articles found in the Law Jurnals, and articles by commentators, indicate that the courts are getting away from the strict application of the lex loci rule. In so doing all sorts of legal theories are relied upon.

When the court has jurisdiction of the parties its primary responsibility is to follow its own substantive law. The basic law is the law of the forum, which sould not be displaced without valid reasons. We have not, therefore, tried to adopt a rule, or rules, for all cases of this kind which may come before us.

In the case at bar, contacts with Kentucky were numerous and significant. Decedent was a lifelong resident of Kentucky. While appellee was a resident of Ohio, he kept a rented room near his work in Kentucky, stayed in it on the average of two nights per week and all his employment and most of his social relationships were in Kentucky. The fatal journey began in Kentucky and was to have been concluded in Kentucky.

So we conclude that the reasons appellee here advances, that the accident occurred in the State of Ohio and that appellee was domiciled and had a residence in that state, are not sufficient in view of the contacts the State of Kentucky had with the parties to justify the displacement of the law of this...