Kennedy v. Dixon, No. 52970

CourtUnited States State Supreme Court of Missouri
Writing for the CourtFINCH; HOLMAN, C.J., and SEILER; DONNELLY; STORCKMAN; HENLEY, J., dissents and concurs in dissenting opinion of STORCKMAN; MORGAN; DONNELLY; STORCKMAN
Citation439 S.W.2d 173
PartiesLillian KENNEDY, (Plaintiff) Respondent, v. Paul E. DIXON, Administrator of the Estate of Mary Towey, Deceased,(Defendant) Appellant.
Decision Date10 March 1969
Docket NumberNo. 52970

Page 173

439 S.W.2d 173
Lillian KENNEDY, (Plaintiff) Respondent,
v.
Paul E. DIXON, Administrator of the Estate of Mary Towey,
Deceased,(Defendant) Appellant.
No. 52970.
Supreme Court of Missouri, En Banc.
March 10, 1969.
As Modified on Courts own Motion and Rehearing Denied April 14, 1969.

Page 174

Thompson, Walther & Shewmaker, Harold C. Gaebe, Jr., St. Louis, for respondent.

James J. Amelung, Ronald C. Willenbrock, Holtkamp & Amelung, St. Louis, for appellant.

FINCH, Judge.

This is an appeal by defendant from a judgment in favor of plaintiff for.$19,000 for personal injuries arising out of an automobile accident which occurred in Indiana.

Page 175

We reverse and remand.

Edward Towey and Mary, his wife, lived in an apartment at 6444 Alamo Street in St. Louis. Mrs. Towey's nieces, Marguerite and Maureen Long, lived with the Toweys and had since the death of their mother. Their father lived in New York. August 1963 was Mr. Towey's vacation time and the family planned a trip to New York, particularly to permit the nieces to visit with their father. Plaintiff, a teacher who lived in the same apartment building, went with them on that trip, although Mr. Towey testified that he did not know that plaintiff was to accompany them until the day before they left.

In any event, Mr. and Mrs. Towey, the two nieces and Mrs. Kennedy, the plaintiff, left St. Louis on August 5, 1963, to drive to New York in Mr. Towey's Chevrolet. In New York they stayed in Mr. Long's apartment. While in New York, Mrs. Kennedy made two trips out of the city, one a conducted tour of New England. When she returned from the latter trip, she went to Mr. Long's apartment where she remained with the others for two days, until they started the return trip to St. Louis.

On the second day of the return trip they were involved in a head-on collision in which Mrs. Towey was killed and plaintiff was injured. They had stopped at about 10:15 a.m. at a rest stop on the turnpike near Angola, Indiana. When they started again, Mrs. Towey took over the driving. Mr. Towey was in the front seat with her and Mrs. Kennedy and the two nieces were in the back seat. The evidence was that it was a clear, dry day, and the Towey Chevrolet was in excellent condition.

In leaving the rest area to reenter the westbound pavement of the turnpike it was necessary to proceed over an exit ramp on the left side of which there was a concrete curb six to eight inches in height. The Chevrolet traveled along this ramp at 15 to 20 miles per hour, according to Mr. Towey, and 'not fast', perhaps 25 to 30 miles per hour, according to Marguerite Long. Suddenly, it bumped, evidently caused by striking the concrete curb on the left. It ran over the curb, crossed the 24-foot westbound pavement, crossed a grass median strip (45 feet wide), and finally went onto the eastbound pavement where it collided head on with a tractortrailer unit which was headed east. It seemed to accelerate after the 'bump' and seemed to be going 'fast' at the time of collision. The car traveled 204 feet from the point where it crossed the curb until it collided with the truck.

Other evidence will be detailed as necessary in connection with specific points presented for decision.

Missouri does not have a guest statute, but Indiana does. It (§ 47--1021, Burns' Indiana Statutes Annotated, Vol. 8, Part 3, p. 62) provides as follows:

'The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, in or upon such motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle.'

Plaintiff's petition was separated into three counts, each asserting a separate theory of recovery for the personal injuries which she sustained. Count I alleged that the parties all lived in Missouri, made arrangements in Missouri for the trip which was to originate and terminate in Missouri and that the automobile in which they rode was licensed and garaged in Missouri. This count was drafted on the theory that the relationship between the parties would be governed by Missouri law and that the Indiana Guest Statute would not be applicable for that reason. Count II, drafted on the theory that Indiana law would govern relationship of the parties, alleged that

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plaintiff was riding as a fare-paying passenger and not as a guest. In Count III plaintiff sought recovery under the Indiana Guest Statute, alleging that her injuries were caused 'by the conscious indifference of Mary J. Towey to the consequences of her own acts in the manner of operation of the aforementioned automobile and said collision and plaintiff's injuries directly resulted from the wanton and wilful misconduct of Mary J. Towey in the operation of said automobile.'

The trial court sustained a motion by defendant to dismiss Count I, thereby denying the plaintiff the opportunity to submit her case to the jury on the theory that Missouri law was applicable. The court submitted the case to the jury on Counts II and III and the jury found the issues on each in favor of plaintiff and returned a verdict for plaintiff for.$19,000. Judgment in that amount was entered. Defendant appealed after his motion for new trial was overruled.

Defendant first asserts that plaintiff did not make a submissible case on Count II and that his motion for a directed verdict thereon should have been sustained. This contention is made on the basis that there was no substantial evidence that plaintiff was a fare-paying passenger.

The evidence on this issue was limited by the court by reason of § 491.010, RSMo 1959, V.A.M.S., Missouri's so-called Dead Man's Statute. Plaintiff sought to testify concerning arrangements made with Mrs. Towey but an objection was sustained, and plaintiff made an offer to prove that she made arrangements with Mrs. Towey in St. Louis whereby each woman would put up $50 toward payment for transportation and other expenses of the trip and each would put up more, if necessary, when that was gone. She also offered to testify that while in New York she delivered her check No. 591 for $50 to Mrs. Towey. Plaintiff was permitted, over objection based on the Dead Man's Statute, to offer in evidence a book of check stubs Nos. 570 to 592, inclusive, and bearing dates from 7--2--63 to an undated check No. 592 for $202 to Tauck Tours, marked 'Trip'. Plaintiff testified that this stub No. 592 was for a check in payment for her New England tour taken while she was in New York. Check stub No. 591 was dated 8--10--63 and was for $50 with payee shown as Mary Towey. It was marked 'Trip'. Plaintiff was permitted to testify with respect to her custom of keeping check stubs and that the entry on stub 591 was made in New York.

The transcript in this case further shows that the $50 check to Mrs. Towey was never charged to the account of Mrs. Kennedy and was not found in the pocketbook or other possessions of Mrs. Towey after the accident. Mr. Towey and the two Long girls all testified that they had never seen the check and knew nothing about it.

Defendant argues that there was no substantial evidence of any payment by plaintiff to Mrs. Towey for transporting her to and from New York. He argues that there was no evidence of any agreement to pay and no evidence that Mrs. Towey ever received a check for $50 or was paid in any form whatsoever. The check never cleared the bank and there was no evidence it was ever in possession of Mrs. Towey. In addition, defendant claims that the book of check stubs was improperly admitted in evidence. We need not decide these questions because we have concluded that under the law of Indiana such evidence was insufficient as a matter of law to establish that plaintiff was a fare-paying passenger rather than a guest even if we assume that the check stubs were properly admitted and that check stub No. 591 established that the check for $50 was delivered by the plaintiff to Mrs. Towey.

In the case of Allison v. Ely, 241 Ind. 248, 170 N.E.2d 371, decided in 1960, the Supreme Court of Indiana reversed outright a judgment recovered on the theory that plaintiff in the case was a fare-paying passenger rather than a guest. The parents of two college students had attended a Dad's Day and the parents of defendant

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rode home with the parents of plaintiff, leaving their car for the purpose of having the defendant, plaintiff and plaintiff's sister use it to come home for the Thanksgiving holidays. Purposes involved in leaving the car included a saving in time, avoiding crowded, inconvenient public transportation, and a saving in expense resulting from driving instead of paying for travel via public transportation. The evidence also disclosed that plaintiff contributed a part of the purchase price of gasoline for defendant's car. The Indiana Supreme Court quoted with approval from their earlier opinion in Liberty Mut. Ins. Co. v. Stitzle, 220 Ind. 180, 185, 41 N.E.2d 133, 135, as follows:

"The word 'guest' has more of social than business significance. The words 'without payment for such transportation' imply some valuable consideration for the ride. The presence of the person injured must have directly compensated the owner or operator in a substantial and material way. If the trip is primarily social, incidental benefits though monetary do not exclude the guest relationship. If the trip is primarily for business purposes and the one to be charged receives substantial benefit, though not payment in a strict sense, the guest relationship does not exist. Expectation of a material gain rather than social companionship must have motivated the owner or operator in inviting or permitting the other person to ride. * *

"We do not consider the mere possibility...

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151 practice notes
  • O'Connor v. O'Connor, No. 12770
    • United States
    • Supreme Court of Connecticut
    • 23 Diciembre 1986
    ...Ill.2d 42, 262 N.E.2d 593 (1970); Fabricius v. Horgen, 257 Iowa 268, 132 N.W.2d 410 (1965); Mitchell v. Craft, supra; Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969); Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979). We can readily conceive of circumstances, however, in which the choice between t......
  • Paul v. National Life, No. 16808
    • United States
    • Supreme Court of West Virginia
    • 12 Enero 1987
    ...408 (1973) (guest statute case); Mitchell v. Craft, 211 So.2d 509 (Miss.1968) (contributory negligence auto case); Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969) (guest statute case); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966) (guest statute case); Mellk v. Sarahson, 49 N.J. 226, 229 A.2......
  • Chambers v. Dakotah Charter, Inc., Nos. 17400
    • United States
    • South Dakota Supreme Court
    • 3 Junio 1992
    ...Cohen v. McDonnell Douglas Corp, 389 Mass. 327, 450 N.E.2d 581 (1983); Mitchell v. Craft, 211 So.2d 509 (Miss.1968); Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969); Harper v. Silva, 224 Neb. 645, 399 N.W.2d 826 (1987); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963); ......
  • Gutierrez v. Collins, No. B-7943
    • United States
    • Supreme Court of Texas
    • 13 Junio 1979
    ...away from Second Restatement which it adopted in 1966); Mitchell v. Craft, 211 So.2d 509 (Miss.1968) (Restatement); Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969) (Restatement); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966) (Leflar); Mellk v. Sarahson, 49 N.J. 226, 229 A.2d 625 (1967) (Rest......
  • Request a trial to view additional results
151 cases
  • O'Connor v. O'Connor, No. 12770
    • United States
    • Supreme Court of Connecticut
    • 23 Diciembre 1986
    ...Ill.2d 42, 262 N.E.2d 593 (1970); Fabricius v. Horgen, 257 Iowa 268, 132 N.W.2d 410 (1965); Mitchell v. Craft, supra; Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969); Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979). We can readily conceive of circumstances, however, in which the choice between t......
  • Paul v. National Life, No. 16808
    • United States
    • Supreme Court of West Virginia
    • 12 Enero 1987
    ...408 (1973) (guest statute case); Mitchell v. Craft, 211 So.2d 509 (Miss.1968) (contributory negligence auto case); Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969) (guest statute case); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966) (guest statute case); Mellk v. Sarahson, 49 N.J. 226, 229 A.2......
  • Chambers v. Dakotah Charter, Inc., Nos. 17400
    • United States
    • South Dakota Supreme Court
    • 3 Junio 1992
    ...Cohen v. McDonnell Douglas Corp, 389 Mass. 327, 450 N.E.2d 581 (1983); Mitchell v. Craft, 211 So.2d 509 (Miss.1968); Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969); Harper v. Silva, 224 Neb. 645, 399 N.W.2d 826 (1987); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963); ......
  • Gutierrez v. Collins, No. B-7943
    • United States
    • Supreme Court of Texas
    • 13 Junio 1979
    ...away from Second Restatement which it adopted in 1966); Mitchell v. Craft, 211 So.2d 509 (Miss.1968) (Restatement); Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969) (Restatement); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966) (Leflar); Mellk v. Sarahson, 49 N.J. 226, 229 A.2d 625 (1967) (Rest......
  • Request a trial to view additional results

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