McCarty v. Bishop

• Decision Date: 11 January 1937
• Citation: 102 S.W.2d 126,231 Mo.App. 604
• Parties: KATHRYN McCARTY, RESPONDENT, v. LORENE BISHOP, APPELLANT
• Court: Kansas Court of Appeals

102 S.W.2d 126

231 Mo.App. 604

KATHRYN McCARTY, RESPONDENT, v. LORENE BISHOP, APPELLANT

Court of Appeals of Missouri, Kansas City

January 11, 1937

Appeal from the Circuit Court of Jackson County.--Hon. Thomas J Seehorn, Judge.

AFFIRMED.

Judgment affirmed.

J Francis O'Sullivan, John M. P. Miller and Maurice J O'Sullivan for respondent.

O. H. Stevens of counsel.

Morrison, Nugent, Wylder & Berger, Charles C. Byers and Ozell M. Trask for appellant.

SPERRY, C. Campbell, C., concurs.

OPINION

SPERRY, C.--

Respondent here was plaintiff below, and appellant was defendant. The parties will be referred to herein as plaintiff and defendant, as they were in the circuit court. Plaintiff sued for damages on account of injuries sustained in a motor car collision and obtained a judgment, from which this appeal is prosecuted.

Plaintiff and defendant are sisters and defendant was the owner and operator of a car in which plaintiff was riding in the State of Illinois when she was injured. Defendant carried an insurance policy and insurer is the real party defending. Illinois had what is known as the "guest law, which both parties agree applies to this case and should be interpreted as interpleted by the courts of that State. The "guest law" precluded recovery in a case of this kind except for "wilful and wanton misconduct" of defendant. Defendant contends there was a failure of proof of any "wilful and wanton misconduct" whatever, and that, therefore, there should have been a directed verdict.

The evidence on this point is that, just prior to and at the time of the collision, defendant was driving at a speed in excess of fifty miles per hour and was racing with the car with which the collision occurred; that plaintiff vehemently protested against defendant's conduct in passing the car and in her driving as she did; and that defendant utterly disregarded all such protests.

Plaintiff, after verdict, is entitled to the benefit of the most favorable evidence on this point; to have disregarded all unfavorable evidence in connection therewith; and to have the benefit of every favorable inference to be drawn from the evidence. Plaintiff pleaded and offered in evidence certain statutes of the State of Illinois, which provide a fine of $ 200 for anyone who shall be guilty of racing on any highway in the State, also a number of decisions of the courts of Illinois, construing the guest law of that State. A large number of cases of other States having similar statutes have been cited by both parties. Counsel are to be commended because of the diligence and research evident in their briefs. We think the following, rather lengthy excerpt, quoted by defendant, fairly states the law as gathered from an examination of the decisions from the many States cited, and especially from Illinois:

"'The question of whether defendant was negligent was under such facts clearly a question for the jury. It is not urged by defendant that the verdict of the jury is in this respect against the weight of the evidence.

"'However, the question of whether there was any evidence from which the jury could reasonably find that the conduct of defendant was wilful and wanton presents an entirely different question. The distinction between conduct which is wilful and wanton and negligence which is not wilful and wanton, is not easy to define. It is well settled, however, that causes of action based upon the one differ fundamentally in their nature and legal consequences from causes of action based upon the other. [Robbins v. Illinois Power & Light Corp., 255 Ill.App. 106.] Thus contributory negligence, which is a complete defense to an action for mere negligence, is no defense at all where the cause of action is based upon conduct which may properly be defined as wilful and wanton. Further, exemplary or punitive damages may be allowed in an action based on wilful and wanton conduct but may not be allowed in an action brought for mere negligence. Primarily, the words 'wilful and wanton' convey the thought of intentional injury, and this is undoubtedly the reason that contributory negligence is not allowed as a defense to an action charging facts which constitute wilfulness and wantonness. This does not mean that there must be proof that defendant was actuated by ill will ( Illinois Cent. R. Co. v. Eicher, 202 Ill. 556, 67 N.E. 376), but a consideration of the cases discloses that the conduct which in law will be held wilful and wanton must be either such conduct as intentionally inflicts an injury or conduct which ethically, under the facts and circumstances appearing, is the equivalent thereof. [20 R. C. L., Sections 15; 45 Corpus Juris, Sections 37-49.]

"'From the recent cases in our Supreme Court (most of which are cited by plaintiff) we gather there are at least four different classes of conduct which may properly be regarded as wilful and wanton, namely (1) where defendant has inflicted an intentional injury; (2) where defendant has failed to exercise ordinary care when a known and extraordinary danger is imminent (Walldren Express & Van Co. v. Krug, 291 Ill. 472, 126 N.E. 97); (3) where a defendant through recklessness, regardless of the danger to another, has carelessly failed to discover an extraordinary and impending danger which could have been discovered by the exercise of ordinary care (Brown v. Illinois Terminal Co., 319 Ill. 326, 150 N.E. 242); (4) carelessness so gross in its nature as to indicate a mind reckless and regardless of consequences (Bremer v. Lake Erie & Western R. Co., 318 Ill. 11, 148 N.E. 862). These cases further hold that ordinarily the question of whether a defendant is guilty under a wilful and wanton count is a question for the jury, provided there is any evidence in the record from which a jury can reasonably find that defendant is guilty of such conduct.'" [Nosko v. O'Donnell, 260 Ill.App. 544, l. c. 551, 552.]

In Denton, Admx., v. Midwest Dairy Prod. Corp., 284 Ill.App. 279, l. c. 283, it is said that the Legislature limited "such actions to instances of misconduct which in their nature border on crime." Even in the narrow limits laid down by these cases there was some evidence of "wilful and wanton misconduct" on the part of defendant, for she was, by her own admission, racing on the highway at the time of the collision. This is declared a crime by statute in Illinois. Since there was some evidence of such misconduct, it is a question for the jury as to the weight and credibility to be given to such evidence. [Nosko v. O'Donnell, supra; The Walldren Express & Van Co. v. Krug, 291 Ill. 472, 126 N.E. 97.] Our Supreme Court has said: "Under the law of Illinois the question of wantonness, wilfulness and recklessness is for the determination of the jury under all the facts and circumstances in evidence in that issue. All of the decisions of that State so hold." [Cox v. Terminal R. Ass'n. of St. Louis, 331 Mo. 910, 55 S.W.2d 685, l. c. 687.]

Defendant claims error in the adverse ruling by the court on the following offer of evidence:

"Q. Now, then, I will ask you now, Mr. Heischmidt, to state what, if anything, Mrs. Bishop (Plaintiff's sister and defendant) said in the presence of Mrs. McCarty?

"MR. J. F. O'SULLIVAN: We object to that as not binding.

"THE COURT: Yes. Objection sustained.

"MR. BYERS: We offer to prove by this witness that on the occasion referred to in evidence Mrs. Bishop, in the presence and within the hearing of the plaintiff, Mrs. McCarty, made the statement that the driver of the Buick car had veered over to the left and had struck her car; that is Mrs. Bishop's car, as she was passing the Buick.

MR. J. F. O'SULLIVAN: To which we make the same objection.

"THE COURT: Sustained.

"MR. BYERS: And that such statement on the part of Mrs. Bishop as indicated would be to the effect that the Buick crossed the center line of the road in running into her car.

"MR. J. F. O'SULLIVAN: Now, I make the same objection and on the further ground it is a conclusion.

"THE COURT: Objection sustained."

Defendant urges that the proffered evidence was admissible as a confession by silence. This theory is no doubt correct in a proper offer. [2 Wigmore on Evidence (2 Ed.), pp. 553, 555; 22 C. J., p. 322; State ex rel. Tiffany v. Ellison, 266 Mo. 604, 182 S.W. 996; Hoffman v. Hoffman's Executor, 126 Mo. 486, l. c. 496.] It is unnecessary to discuss the refinements and exceptions to the rule for this is not intended to be a treatise on the subject.

Suffice it to say that defendant did not bring the offered evidence within the rule as laid down in the above cases because there was no claim that the statement was received by plaintiff in silence, and, therefore, acquiesced in by her. It is not claimed that the statement was made to her, but only to a third person in her presence; but, in any event, there was no preliminary offer of proof that plaintiff did not deny the same, assuming that the circumstances were such as to call for a denial. [State ex rel. Tiffany v Ellison, 266 Mo. 604, 182 S.W. 996; State v. Hamilton, 55 Mo. 520.] "His assent to them is the thing which makes them admissible against him, and that assent must be shown in some way, before the sayings can be admitted." (Italics ours.) [Drumright v. The State, 29 Ga. 430, l. c. 431.] This is a preliminary matter for the court and not for the jury, to determine its admissibility. [Weightnovel v. State of Florida, 46 Fla. 1, 35 So. 856; 22 C. J., pp. 325-326; Senn v. The Southern Ry. Co., 108 Mo. 142, l. c. 150.] We hold the above quotation to be the correct statement of the procedure to be followed in order to make the self-serving declaration of the defendant admissible in evidence against the plaintiff. Even then it is weak in probative...