Goodman v. McCulley, 49366

• Decision Date: 08 April 1963
• Docket Number: No. 1,No. 49366,49366,1
• Citation: 367 S.W.2d 580
• Parties: Herman GOODMAN, an Incompetent, by and through the duly appointed guardian of his Estate, Daisy Goodman, Plaintiff-Appellant, v. W. H. McCULLEY, Defendant-Respondent
• Court: Missouri Supreme Court

Page 580

367 S.W.2d 580

Herman GOODMAN, an Incompetent, by and through the duly appointed guardian of his Estate, Daisy Goodman Plaintiff-Appellant, v. W. H. McCULLEY, Defendant-Respondent.

No. 49366.

Supreme Court of Missouri, Division No. 1.

April 8, 1963.

Motion for Rehearing or to Transfer to Court En Banc Denied

May 13, 1963.

Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Paul L. Bradshaw, Warren S. Stafford, Springfield, for appellant.

Claude T. Wood, Richland, Charles H. Howard, Hendren & Andrae, Jefferson City, for respondent.

HOLMAN, Commissioner.

Plaintiff sustained severe personal injuries when an automobile (owned and operated by defendant) in which he was riding left the highway and overturned. In this action plaintiff sought to recover damages for his injuries in the sum of $200,000. A trial resulted in a verdict for defendant. Plaintiff has duly appealed and here contends that the court erred in giving Instructions D-3, D-4, D-5, D-6, and D-7. Defendant's position in this court is that said instructions were not erroneous, and, in any event, plaintiff is not entitled to recover because, as a matter of law, he was a guest within the meaning of the applicable Arkansas Guest Statutes.

On the dates hereinafter mentioned plaintiff's home was near Dixon, Missouri, and defendant lived in Stoutland, Missouri. Both parties were employees of the Frisco Railroad and, in September, 1957, were temporarily assigned to a project near Amory, Mississippi. On September 20, 1957, plaintiff and defendant left Amory shortly after noon in defendant's car enroute to their homes in Missouri. At about dusk, as the car reached the crest of a hill near the town of Imboden, Arkansas, it entered a rather sharp turn to the left and when defendant applied the brakes the car got off on the dirt shoulder, left the highway, and overturned. Defendant received only slight injuries, but plaintiff, who was asleep at the time, was thrown from the car and badly injured. He was unconscious for about ten days following the casualty. After receiving emergency treatment plaintiff was taken to the Frisco Hospital in St. Louis where he remained until January 25, 1958. An examination disclosed that he had sustained a fractured skull and a fracture of the right hip, tibia, and ankle bone. As a result of brain damage plaintiff developed post traumatic epilepsy.

The principal controverted issue in the trial related to the question of whether plaintiff was a guest within the meaning of the Arkansas statutes. Those statutes read as follows:

'75-913. No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was wilfully and wantonly operated in disregard of the rights of the others.

'75-914. The term guest as used in this act [Secs. 75-913, 75-914] shall mean self-invited guest or guest at sufferance.

'75-915. 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 * * * 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. * * *'

There was no contention in this case that the automobile was wilfully or wantonly operated. The essential fact issue was whether plaintiff made 'payment for such transportation' and hence came within the exception stated in Section 75-915, supra.

By reason of his injuries plaintiff was mentally confused and disoriented for more than two years following the casualty. Dr. Schlicht, who examined him in the fall of 1958 for the Railroad Retirement Board, testified that his 'mental status was such that I doubt if he was even aware that I was present.' In October 1958, he was adjudged incompetent by the probate court and his wife was appointed his guardian. From the time of the casualty until after January 1960 he could not remember anything about the 'trip' in question. However, plaintiff testified that, following a seizure he 'had' in a drugstore in Dixon in January 1960, his memory started to return.

After a preliminary inquiry (held outside the presence of the jury) the trial court ruled that plaintiff was a competent witness. In regard to the arrangements for the trip, plaintiff testified that he met defendant the night before they left and 'asked him for a ride home'; that no amount was mentioned but 'I told him I would pay him'; that defendant said 'O.K.' and the next day, picked him up at his bunk car; that when defendant picked him up, 'I got in the car and sat down, I handed him a five-dollar bill. He taken it out of my hand. Q. (by Mr. Bradshaw): What did you tell him, if anything, that was for? A. I told him that was for my ride. Q. Did he take the five-dollar bill? A. He taken it out of my hand. Q. What did he say? A. He said O.K., and up the road we went. Q. Now was that five-dollar bill ever returned to you? A. No, sir. Q. Do you remember starting up the road with him? A. I remember starting up the road. Q. Now what is the next thing you remember? A. Waking up * * * I was in the hospital.'

Upon cross-examination plaintiff testified as follows: 'Q. If I understand you correctly, Mr. McCulley did not ask you to pay, is that right? A. He didn't say * * * he didn't ask me, no. Q. You just handed him five dollars? A. That's right. Q. Now, Mr. Goodman, did you intend that to apply on the expenses? A. Yes, sir. Q. And was that * * * did you estimate that as your share of the expenses to ride home? A. Yes, sir. Q. So what you were doing then, Mr. Goodman, was sharing expenses with him? A. Yes, sir, that is right. Q. And that is all you were doing? A. I was trying to do.' He further testified that he had ridden back to Missouri with other workmen on a number of occasions and had always given them $5.00.

Defendant (called as a witness by plaintiff) denied that plaintiff ever paid or agreed to pay him any money. He did testify, however, that 'somewhere around Jonesboro, he asked me where I was going to gas up, and I told him I would wait until I crossed the line at Thayer and not have to pay the Arkansas tax. Q. Is Thayer is Missouri or Arkansas? A. Thayer is just a little ways past the Missouri line in Missouri. He said, 'When you gas up, I will go in with you on it.' * * * Q. Up until the point of this accident had he paid for any gas? A. No. Q. Had you stopped for any gas? A. No.'

Upon the question of negligence plaintiff's case was submitted under the res ipsa loquitur doctrine and there is no contention that he did not make a submissible case thereunder. As stated, the contention of nonsubmissibility is based upon the premise that plaintiff was, as a matter of law, a guest of defendant. In determining that issue we will view the evidence in the light most favorable to plaintiff and disregard the evidence offered by defendant unless it aids the plaintiff.

We have concluded that under the evidence in this case the jury reasonably could have found that plaintiff was not a guest within the meaning of the foregoing statutes and hence the court properly overruled defendant's motions for a directed verdict. In that connection it should be noted that said statutes are in derogation of the common law and are to be strictly construed. Rogers v. Lawrence, 227 Ark. 117, 296 S.W.2d 899. And where, as here, there is a dispute as to the facts, the issue as to whether one is a guest is ordinarily a question of fact for the determination of the jury. Brand v. Rorke, 225 Ark. 309, 280 S.W.2d 906. 'Whatever may be the law in other jurisdictions, see Annotation, 10 A.L.R.2d 1351, it seems to be well settled in Arkansas that payments by a passenger to the driver raise a fact issue for the jury (or for the Court in an action tried without a jury) as to whether the passenger is a guest under the Arkansas Guest Statute, Ark.Stats. Secs. 75-913 to 75-915, or is a farepaying passenger.' Hartsell v. Hickman, D.C., 148 F.Supp. 782, 785. See also, to like effect, McMahon v. De Kraay, 70 S.D. 180, 16 N.W.2d 308, which construed the Arkansas statutes; Ward v. George, 195 Ark. 216, 112 S.W.2d 30; ...