Mansfield v. Trailways, Inc.

• Decision Date: 16 June 1987
• Docket Number: No. 14829,14829
• Citation: Mansfield v. Trailways, Inc., 732 S.W.2d 547 (Mo. App. 1987)
• Parties: Nellie MANSFIELD, Appellant, v. TRAILWAYS, INC., a Delaware corporation, Respondent.
• Court: Missouri Court of Appeals

Page 547

732 S.W.2d 547

Nellie MANSFIELD, Appellant, v. TRAILWAYS, INC., a Delaware corporation, Respondent.

No. 14829.

Missouri Court of Appeals,

Southern District,

Division One.

June 16, 1987.

Peter N. Sterling, Rolla, for appellant.

R.L. Veit, Paul T. Graham, Carson, Coil, Riley, McMillin, Levine & Veit, P.C., Jefferson City, for respondent.

CROW, Chief Judge.

Plaintiff Nellie Mansfield appeals from an order of the Circuit Court of Phelps County dismissing her two-count petition for damages against defendant Trailways, Inc.

The allegations of Count One pertinent to this appeal are:

"2. Plaintiff is a resident of the County of Phelps, State of Misosuri [sic].

....

4. Defendant Trailways, Inc., operates an office and agent for the sale of its services and operates its motor carrier service ... in Phelps County, Missouri.

5. Defendant Trailways, Inc., owns the property where the passenger terminal is located ... in Wichita, Kansas.

6. Plaintiff purchased a ticket from Defendant at Oklahoma City to her destination of Kansas City, Missouri, on October 27, 1981, to return to her residence in Phelps County, Missouri.

7. On October 27, 1981, while on Defendant Trailways' bus Plaintiff attempted to use the on board restroom at the rear of the vehicle....

8. Plaintiff was unable to use said restroom because the door was wired shut and not in working order on said date.

9. On said date at about noon, while said bus was at Defendant's bus terminal in Wichita, Kansas, Plaintiff entered said terminal to use the restroom facilities. Plaintiff, at all times herein, was walking with the aid of crutches, visible to others.

....

11. Plaintiff approached a male ticket agent at the sales counter ... and asked where the restroom was located, and was informed by said agent as to its location.

12. As the Plaintiff attempted to leave said restroom and descend the stairway, Plaintiff slipped on said stairway, causing her to fall down the stairs.

13. Defendant owed a duty to its customers ... including Plaintiff, to keep its terminal, including all stairways and steps therein in a condition reasonably safe for the use of said customers ... including Plaintiff, and owed a duty to provide a working restroom on said bus for the use of its customers ... including Plaintiff.

14. Defendant carelessly and negligently failed to maintain the steps leading from the terminal floor area to the restrooms in the terminal, in a condition reasonably safe for use by its customers ... including Plaintiff, in that:

[Here, the petition lists 15 alleged defects and dangerous conditions.]

15. Not withstanding [sic] that Defendant knew or should have known of the presence of said defects and dangerous conditions aforementioned and of the danger to the Plaintiff presented thereby, Defendant failed to warn its customers ... including, the Plaintiff, of the presence of said defects and dangerous conditions aforementioned.

16. As a direct and proximate result of the negligence of Defendant, Plaintiff slipped and fell down the entire stairway.

[At this point, the petition alleges plaintiff sustained "many serious, permanent, progressive and disabling injuries" of sundry kinds, that she expended money] and obligated herself financially for medical care and treatment of such injuries, that she will have future expenditures for those purposes, and that by reason thereof she has been damaged in the amount of $250,000.]

WHEREFORE, Plaintiff ... prays for ... judgment ... against Defendant Trailways, Inc., in the amount of ... $250,000.00 ... together with costs herein expended and for such other and further relief as the Court deems just and proper."

The allegations of Count Two pertinent to this appeal are:

"21. Plaintiff realleges each and every Paragraph of Count One of her petition as though incorporated herein.

22. On October 24, 1981, Plaintiff purchased from Defendant and its agent in Rolla, Phelps County, Missouri, a ticket for bus transportation from Rolla, Missouri to Oklahoma City, Oklahoma, Plaintiff traveled on said date to said destination intending to return to Missouri.

23. On October 27, 1981, Plaintiff paid to Defendant approximately ONE HUNDRED AND NO/100 DOLLARS ... for a ticket for transportation from Oklahoma City, Oklahoma, to Kansas City, Missouri, via Wichita, Kansas.

24. Defendant agreed to provide transportation services, including on board restroom facilities, to Plaintiff for said trip from Oklahoma City, Oklahoma, to Kansas City, Missouri.

25. Plaintiff boarded and occupied a bus belonging to Defendant and traveled to Wichita, Kansas.

26. Plaintiff was unable to use the restroom facilities on said bus as aforementioned.

27. Plaintiff performed all duties to Defendant regarding said transportation services.

28. Defendant failed to perform said services in that it did not provide said on board restroom facilities and denied Plaintiff the benefit of said contracted services.

29. As a result of Defendant's act, Plaintiff was damaged in the amount of ONE HUNDRED AND NO/100 DOLLARS ..., said sum being the cost of said services to Plaintiff.

WHEREFORE, Plaintiff prays for a judgment ... against Defendant in Count Two of her petition, in the amount of ONE HUNDRED AND NO/100 DOLLARS ..., for costs and such other and further relief the Court deems just and proper."

The petition was filed June 24, 1985, 3 years, 7 months and 28 days after the alleged incident occurred.

In an amended motion to dismiss, defendant averred that the claim asserted in Count One was controlled by Kansas law, and was barred by the two-year limitation of Kan.Stat.Ann. § 60-513(a)(4) (1983). In the same motion, defendant averred that the claim asserted in Count Two was controlled by Oklahoma law, and was barred by "Oklahoma Rules of Civil Procedure, § 95." ¹

In support of its amended motion to dismiss, defendant referred the trial court to § 516.190, RSMo 1978, which provides:

"Whenever a cause of action has been fully barred by the laws of the state ... in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state."

Defendant asserted that the "injury and tort" pleaded in Count One took place in Kansas, therefore the Kansas statute of limitations applied. Defendant asserted that Count Two, "being a contract action arising in Oklahoma," was governed by the Oklahoma statute of limitations on contract actions. ²

Thereafter, an affidavit of D. Paul Stafford was filed. Stafford's affidavit, which identified him as Secretary of Trailways Lines, Inc., formerly Trailways, Inc., stated that a document attached thereto was "the only writing which would have occurred when Nellie Mansfield bought her ticket in the State of Oklahoma for a return trip to Rolla, Missouri."

The document attached to Stafford's affidavit consisted of three small sheets. The following is a facsimile of the first sheet:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The following is a facsimile of the second sheet:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The following is a facsimile of the third sheet:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff, in a memorandum in opposition to defendant's amended motion to dismiss, argued to the trial court that the "cause of action in contract" arose in Missouri, inasmuch as she "purchased tickets to leave and return (not a round-trip ticket) to Missouri, since the completed performance was to be in Missouri, and since both parties have a significant connection to Missouri." Consequently, said plaintiff, "Missouri statutes of limitation apply in the contract count."

Plaintiff's memorandum further averred that the "personal injury claim" was not barred by the Kansas statute of limitations; however, we need not set forth plaintiff's argument to the trial court on that subject, as no issue regarding the Kansas statute is raised in this appeal.

On May 15, 1986, the trial court entered an order granting defendant's amended motion to dismiss both counts of plaintiff's petition. This appeal followed.

Plaintiff presents one assignment of error, which maintains that Count Two should not have been dismissed, as that count "was expressly pled as an action upon a contract, agreement or promise in writing, to wit: a passenger ticket, and therefore the five year provision of the Oklahoma statute would apply to permit plaintiff's action which was brought within five years after the cause of action accrued."

Plaintiff assigns no error regarding the dismissal of Count One, so we direct our attention solely to Count Two. As to that count, plaintiff, contrary to her position in the trial court, states in her brief: "For the purpose of this appeal, it is conceded that contract was made in Oklahoma and the Oklahoma Statute of Limitation would apply in consequence of Missouri's 'borrowing' statute, Section 516.190 RSMo."

With the scope of our inquiry so defined, we observe that the order from which plaintiff appeals does not indicate whether the trial court considered the Stafford affidavit and the ticket attached thereto.

It has been held that if it appears from a petition that the statutory period of limitation has expired, such defense may be properly raised by a motion to dismiss. Uber v. Missouri Pacific Railroad Co., 441 S.W.2d 682, 683 (Mo.1969); Gramlich v. Travelers Ins. Co., 640 S.W.2d 180, 184 (Mo.App.1982). It has further been held that where such a motion refers to the adverse party's answers to interrogatories, the trial court can treat such motion as one for summary judgment under Rule 74.04, Missouri Rules of Civil Procedure (14th ed. 1983). Bohrmann v. Schremp, 666 S.W.2d 30, 32 (Mo.App.1984). And, in Black Leaf Products Co. v. Chemsico, Inc., 678 S.W.2d 827, 829 (Mo.App.1984), it is said, "[U]nder Rule 55.27, when matters outside the pleadings are presented to and not excluded by the...