Greene v. Morse

• Decision Date: 30 January 1964
• Docket Number: No. 8211,8211
• Citation: 375 S.W.2d 411
• Parties: Norma E. GREENE, Plaintiff-Respondent, v. Edna M. Thompson MORSE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 411

375 S.W.2d 411

Norma E. GREENE, Plaintiff-Respondent, v. Edna M. Thompson MORSE, Defendant-Appellant.

No. 8211.

Springfield Court of Appeals, Missouri.

Jan. 30, 1964.

Motions for Rehearing or to Transfer Overruled Feb. 24, 1964.

Ford, Ford & Crow, Kennett, for defendant-appellant.

Sharp & Hatley, Nev Madrid, for plaintiff-respondent.

STONE, Judge.

In this jury-tried action for damages on account of injuries alleged to have resulted from a vehicular upset, defendant appeals from an adverse judgment of $3,000 entered upon a unanimous jury verdict. About 3:30 P.M. on January 5, 1962, plaintiff Norma E. Greene was riding in a 1953 Ford sedan owned and then being driven by her sister, defendant Edna M. Thompson, in a northerly direction on U. S. Highway 63 near Gilmore, Arkansas. The weather was clear and the 23-foot paved roadway was level and dry. As defendant started around a slight curve to her left while driving about sixty to sixty-five miles per hour, she remarked, 'how about some music'; and, suiting her action to the unanswered question, she reached for the radio with her right hand. 'That's when she ran off' the paved roadway onto the right-hand or east shoulder of the highway, where the Ford automobile traveled 'just a little bit' before defendant 'swung back' to her left, lost control of the vehicle, crossed the paved roadway, ran off the embankment on the opposite or west side of the highway, and came to a stop in the west ditch headed back toward the south. With the medical evidence omitted from the transcript by agreement, no question with respect to plaintiff's injuries or the size of the verdict is presented here.

Defendant's-appellant's primary contention upon appeal is that the trial court erred in refusing to direct a verdict for defendant, because (so defendant asserts), as a matter of law, plaintiff was a 'guest' within the contemplation and meaning of the Arkansas guest statutes [Ark.Stats. Secs. 75-913 to 75-915], the pertinent portions of which are quoted marginally, ¹ and defendant was not guilty of willful and wanton misconduct in the operation of her automobile. In determining whether plaintiff made a submissible case, we must consider the evidence in the light most favorable to plaintiff, must accord to her the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant's evidence except insofar as it may aid plaintiff's case. Goodman v. McCulley, Mo., 367 S.W.2d 580, 583(1); Woolf v. Holton, 240 Mo.App. 1123, 1127, 224 S.W.2d 861, 863(2).

Defendant, a middle-aged lady residing in Kennett, Missouri, was betrothed to one Pete Morse of that city. For the purpose of purchasing furnishings for the home she and Pete were establishing, she had made two trips to Memphis, Tennessee, during December 1961. On the first trip, Pete accompanied her and drove, while on the second trip her sister (plaintiff) accompanied her and likewise drove. Desiring to make a third trip to Memphis for the same purpose, defendant called plaintiff on Monday, January 1, 1962, and 'asked me [plaintiff] if I would go with her' on the following Friday, January 5. Plaintiff replied 'that was too far off for me to make her any promise at that time.' On Wednesday, January 3, defendant inquired of her sister whether she had decided to make the contemplated trip to Memphis on Friday. According to plaintiff, 'I told her [defendant] that Pete should go with her, I didn't want to go and help select things for her new home.' Defendant again talked with her sister on the evening of Thursday, January 4. That conversation, as related by plaintiff, was: 'She [defendant] told me that she had asked Pete to go to Memphis with her, and he told her that it was impossible for him to go, he couldn't get away from the shop that day, and she further told me that she had some things that she would give me, * * * she had some drapes, lamps, bedspreads and things * * * she would give me these things to furnish my apartment if I would go with her. * * * She hadn't been feeling well, so I told her Thursday night I would go Friday morning.'

Before starting on Friday, January 5, defendant asked plaintiff to drive; and, pursuant to that request, plaintiff did drive the entire distance to Memphis over a route of her choice. The only stop on the way was at a filling station where (so plaintiff said) 'Edna [defendant] used the restroom and I had the car serviced.' In Memphis, plaintiff proceeded to a parking garage and received the ticket from the attendant. The sisters then visited several department stores, where they looked at 'items relating to the furnishing of [defendant's] house' and defendant asked plaintiff's opinion concerning some of those items. Plaintiff purchased nothing for herself that day. After the sisters returned to the parking garage, plaintiff produced the ticket, paid the charge for parking, and drove to a roadside eating establishment where the sisters stopped for a late lunch. After the meal, defendant took the wheel for the first time (on this trip) and drove some sixteen or seventeen miles to the place of accident.

Since the accident under consideration occurred in Arkansas, the substantive law of that state governs [Russell v. Kotsch, Mo., 336 S.W.2d 405, 408(1); Hall Motor Freight v. Montgomery, 357 Mo. 1188, 1195, 212 S.W.2d 748, 753(9), 2 A.L.R.2d 1292] and Arkansas decisions construing and applying the Arkansas guest statutes are here controlling. Davis v. Wyatt, 359 Mo. 963, 969, 224 S.W.2d 972, 975(1); Yarnall v. Gass, 240 Mo.App. 451, 455, 217 S.W.2d 283, 285(2). In Emberson v. Buffington, 228 Ark. 120, 306 S.W.2d 326, the Supreme Court of Arkansas struck down as unconstitutional the last sentence in Ark. Stats. Sec. 75-915, providing that no person related by blood or marriage within the third degree of consanguinity or affinity to the owner or operator of a motor vehicle should have a cause of action against such owner or operator for personal injuries sustained while in such vehicle. With this statutory provision laid aside, the mere fact that plaintiff and defendant were sisters neither excluded plaintiff from being a guest nor automatically made her one regardless of circumstances, ² and her status is determinable under the general rule [Martinez v. Southern Pacific Co., 45 Cal.2d 244, 288 P.2d 868(5), 873] thus announced in the Arkansas cases: ³ 'The general rule for determining the status of a passenger in an automobile is that if the transportation or carriage in its direct operation confers a benefit only on the person to whom the ride is given and no benefits other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes (Ark.Stats. Secs. 75-913 to 75-915), but if the carriage tends to the promotion of the mutual interests of both the passenger and the driver for their common benefit, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest.'

Defendant's able counsel earnestly contend that 'the evidence clearly established that the only benefit accruing to [defendant] was incidental to having [plaintiff's] company and companionship on the trip.' On the other hand, plaintiff's counsel point out that defendant 'hadn't been feeling well' and, before starting on the trip, asked plaintiff to drive; that plaintiff did drive the entire distance to Memphis over a route of her choice; that the sole purpose of the trip was to purchase furnishings for the home being established by defendant and her fiance; that defendant pressed plaintiff to make the trip not merely because she desired her sister's companionship but more importantly because she sought her advice and assistance in the selection of furnishings at Memphis; and that plaintiff's presence on the trip was regarded by defendant as so beneficial and valuable to herself that she proposed and entered into an inducing agreement that she would give her sister various household furnishings to make the trip--'I [defendant] told her if she would go with me that there was [sic] drapes, bedspreads, rugs, lamp table, telephone table, some pictures, and things that I would give her for the apartment that she had gone out and rented with just the bare necessities to live in, and I would give her these things * * * I was going to dispose of when we moved to the new house.' It may be observed in passing that counsel accord no significance, and neither do we, to such incidental payments as plaintiff may have made in connection with servicing and parking of the automobile. ⁴

It appears to be true in Arkansas [Simms v. Tingle, 232 Ark. 239, 335 S.W.2d 449, 452, 453], as elsewhere, ⁵ that to permit a finding that an occupant is a passenger and not a guest, ⁶ a tangible and substantial benefit must accrue to the operator by reason of the occupant's carriage. Broadly stated, it is clear that social companionship alone, simple hospitality, common courtesy, or presence impelled by social amenity does not confer such benefit. 8 Am.Jur.2d, Automobiles and Highway Traffic, Sec. 475, p. 40; annotation 10 A.L.R.2d 1351, 1360. But it is equally well-settled that a transfer of money, property, or something of material value is not essential to confer a tangible and substantial benefit, ⁷ and that, as the Arkansas cases ⁸ recognize, a benefit of that nature may be found 'if the carriage tends to the promotion of the mutual interests of both the [occupant] and the driver for their common benefit, or if the carriage is primarily for the attainment of some objective or purpose of the operator.' Simms v. Tingle, supra, 335 S.W.2d loc. cit 450(1); Henshaw v. Henderson, Ark., 359 S.W.2d 436, 437. Otherwise described, a situation in the last category is one 'where the rider accompanies the driver at the instance of the latter for the purpose of...