Hulen v. American Oil Co., 23560

• Decision Date: 01 October 1962
• Docket Number: No. 23560,23560
• Parties: Jerry Lee HULEN, Appellant, v. The AMERICAN OIL COMPANY, a Corporation, Respondent.
• Court: Missouri Court of Appeals

Page 726

360 S.W.2d 726

Jerry Lee HULEN, Appellant, v. The AMERICAN OIL COMPANY, a Corporation, Respondent.

No. 23560.

Kansas City Court of Appeals, Missouri.

Oct. 1, 1962.

Sol M. Yarowsky, Kansas City, for appellant.

Jesse L. Childers, Kansas City, Madden & Burke, Kansas City, of counsel, for respondent.

MAUGHMER, Commissioner.

Under his petition filed in Jackson County, Missouri, plaintiff sought to recover for personal injuries and property damage, allegedly incurred by reason of defendant's negligence. The trial court sustained defendant's motion and entered summary judgment for defendant under the pleadings.

Plaintiff's notice of appeal is 'from the order overruling plaintiff's motion for new trial * * *'. The right of appeal is purely statutory and where the statutes do not give such right, no right of appeal exists. State ex rel. State Highway Commission v. Smith et al., Mo., 303 S.W.2d 120; Walker v. Thompson, Mo., 338 S.W.2d 114, 116. Section 512.020, V.A.M.S. authorizes an appeal from any 'final judgment'. The appeal and notice should be from the final judgment and not from the action of the trial court in refusing to grant a new trial. However, our appellate courts have been most liberal in construing the appeal statutes and where there is actually an attempt in good faith to appeal from a final judgment, to sustain the appeal rather than to dismiss it for any inadequacies of the notice. Walker v. Thompson, supra; Woods et al. v. Cantrell et ux., 356 Mo. 194, 201 S.W.2d 311, 315, and Terry v. Metropolitan Life Ins. Co., Mo.App., 206 S.W.2d 724. The appeal here will not be dismissed.

Since the judgment as entered and appealed from was summary and on the pleadings, we shall inspect and consider the pleadings quite fully. Plaintiff in his petition alleges that he is a resident of Kansas City, Jackson County, Missouri, that defendant was engaged in oil refinery operations at Wood River, Illinois, and was authorized to do business in Missouri. He alleges further that at approximately 9:00 a. m., January 27, 1961, he entered upon and drove his 1960 Pontiac automobile upon defendant's premises in Wood River, Illinois, upon a private road thereof, and that defendant's employee negligently operated defendant's locomotive engine and oil car along defendant's track and struck plaintiff's Pontiac, causing plaintiff to suffer personal injuries and property damage.

By its answer defendant admits the collision occurred, reasserts that the entire incident took place on its private property and as a complete bar to the cause of action pleaded that plaintiff requested permission to enter upon its private premises, which permission was granted upon and only upon certain conditions embodied in a written permit which plaintiff signed and accepted. The permit is set forth in toto:

No. 18602

12-29-1960

'AMERICAN OIL COMPANY NO SMOKING

'PERMIT ISSUED TO Jerry Hulen & car

'In consideration of this Permit granted to me by the AMERICAN OIL COMPANY on my request to enter into or upon its premises or property, the undersigned waives, and does hereby release and discharge the AMERICAN OIL COMPANY, its officers and employees, from all liability to the undersigned, his employer, assigns and personal representatives, for all loss or damage, and any claim or demands therefor, on account of injury or other casualty to the person or property of or in the possession or control of the undersigned caused, whether negligently or otherwise, by said AMERICAN OIL COMPANY, its officers, agents, employees, licensees, or any of them, while the undersigned and/or such property is in or upon the said AMERICAN OIL COMPANY premises or property.

'AMERICAN OIL COMPANY

'By J. H. Johnson

Signature Jerry Hulen

Representing Insulation Service,

Address

Tulsa, Okla. Person or Place to be Visited or Purpose of Visit Procon East Gate;'.

While the pleadings and briefs do not entirely clarify or fully explain plaintiff's business upon defendant's premises, it was revealed by the appellate oral argument that plaintiff was there in behalf of Insulation Service. Insulation Service is an organization which had a contract with defendant to perform certain services for defendant. Plaintiff, its employee or subcontractor, was engaged in the performance of those services. Plaintiff was neither an employee nor a customer of defendant.

Simply stated, the issue on appeal is this: Does the permit with its exculpatory clause operate as a bar to plaintiff's cause of action? If it does, the judgment should be affirmed. If it does not, the cause should be remanded for a trial upon the merits of the controversy.

We believe it should first be determined if, except as to matters of practice and procedure, the issue should be decided under the laws of Illinois, where the accident occurred, the lex loci delicti, or under the laws of Missouri, where the suit was brought, the lex fori. We believe that the laws of Illinois control and govern. In Mitchell v. J. A. Tobin Const. Co., 236 Mo.App. 910, 159 S.W.2d 709, 711, Cave, J., speaking for this court, said: 'It seems to be conceded that if plaintiff did not have a common-law cause of action in Kansas, where the tort was committed, then he cannot maintain such an action in Missouri. 'No case under the lex loci, then no case under lex fori,'' (citing cases). Our Supreme Court in Robinson v. Gaines, etc., 331 S.W.2d 653, 655, phrased the rule as follows: 'Generally the law of the forum governs matters pertaining to the remedy and the procedure; the law of the place of the tort determines whether there is a tort as a legal consequence of the alleged conduct; * * *. We now take judicial notice of the public statutes and judicial decisions of a sister state when a pleading 'relies upon the law of another state or contains allegations which show that the law of another state must be applied,'' (citing authorities).

On appeal appellant insists (1) the trial court erred in holding the exculpatory permit was (a) valid, and (b) a complete bar to plaintiff's action; (2) the agreement to exonerate for future negligence is contrary to public policy, and (3) it was error to enter a judgment on the pleadings and deny plaintiff his day in court on both the questions of law and the issues of fact.

Some of the authorities relied upon by appellant have to do with exculpatory clauses in agreements between employers and employees and respecting public carriers. Goldberg, Secretary of Labor v. Whitaker House Cooperative, Inc. et al., 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961); United States v. Silk et al., 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757; Powell v. Union Pacific R. Co., 255 Mo. 420, 164 S.W. 628, 641. In our case there is no employer-employee relationship. As stated in 56 C.J.S. Master and Servant Sec. 3(1), p. 45: 'The relation of master and servant does not exist between an employer or contractee and the servants of an independent contractor, or between an independent contractor and the servant of a subcontractor, and he is not responsible as master, either to or for them.' The rule which applies to public carriers for hire is not applicable to our facts. Other cases cited by appellant are landlord-tenant cases where the exculpatory clause did not clearly and specifically exempt from negligence for the damage suffered. Meyer Jewelry Co. v. Professional Bldg. Co., Mo.App., 307 S.W.2d 517.

Appellant urges us to examine the the opinion in Valentin v. D. G. Swanson & Co., 25 Ill.App.2d 285, 167 N.E.2d 14. There an exculpatory clause in a lease was upheld and the judgment for a tenant who fell on a stairway was reversed with directions to deny judgment on the pleadings. The Illinois legislature thereafter (Ill.R.S., 1961, Chapter 80, Sec. 15a) voided such clauses in...