Pool v. Day

• Decision Date: 26 January 1935
• Docket Number: 31988.
• Citation: 40 P.2d 396,141 Kan. 195
• Parties: POOL v. DAY.
• Court: Kansas Supreme Court

40 P.2d 396

141 Kan. 195

POOL v. DAY.

No. 31988.

Supreme Court of Kansas

January 26, 1935

Syllabus by the Court.

In action for personal injuries sustained in automobile accident, defendant's liability is determinable by laws of state where injury was sustained.

Liability for personal injuries sustained in automobile accident in sister state may be enforced in Kansas court which has jurisdiction of subject-matter and can obtain jurisdiction of parties unless such enforcement is contrary to laws, public policy, and good morals.

Enforcement of common-law liability for personal injuries sustained in automobile accident in sister state held not contrary to Kansas guest statute or to public policy and good morals (Rev. St. Supp. 1933, 8--122b).

In personal injuries action plaintiff's voluntary testimony regarding insurance held incompetent and prejudicial in view of excessive verdict.

1. In an action for the recovery of damages for personal injuries sustained in an automobile accident, the liability of the defendant is to be determined by the laws of the state where the injury was sustained, and such liability may be enforced in the courts of this state, which have jurisdiction of the subject-matter and can obtain jurisdiction of the parties unless such enforcement is contrary to the laws, public policy, and good morals of this state.

2. The enforcement of the common-law liability for personal injuries, sustained in an automobile accident in Oklahoma, is not contrary to the provisions of the guest statute of this state, Rev. St. Supp. 1933, 8-- 122b, nor contrary to the public policy and good morals of this state.

3. The evidence in the case considered in connection with the amount of the verdict rendered, and held that the voluntary evidence of the plaintiff with reference to insurance was incompetent and prejudicial, tending to create passion and prejudice and increase the amount of the verdict, which is excessive.

Appeal from District Court, Cowley County; O. P. Fuller, Judge.

Action by Virginia Pool, by her father and next friend, John Pool against Mont Day, administrator of the estate of James Brady deceased. Judgment for plaintiff, and defendant appeals.

Judgment reversed and new trial granted.

Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L Morris, George B. Powers, Carl T. Smith, and C. H. Morris, all of Wichita, and Harry O. Janicke, of Winfield, for appellant.

W. L. Cunningham, D. Arthur Walker, Fred G. Leach, and Wm. E. Cunningham, all of Arkansas City, for appellee.

HUTCHISON Justice.

This is an action in the name of a minor about seventeen years of age by her father, as her next friend, against the administrator of James Brady, deceased, to recover damages for injuries received by the plaintiff when riding in the car of the defendant, James Brady, driven by him at a high rate of speed, when the car ran against a high embankment at the side of the highway at a railway underpass near Blackwell, Okl., on May 23, 1933. Two other young people were with them in the car when the accident occurred. The driver was instantly killed, the plaintiff was seriously injured, the other girl lived only a few hours after the accident, and the other young man was rendered unconscious for a while.

This action was commenced in the district court of Cowley county, Kan., which had been the home of both plaintiff and James Brady, and still is the home of the plaintiff and is the county in which the administration of the estate of James Brady is pending.

The petition alleged there was no law, regulation, or statute, such as the Kansas guest statute, in force and effect in the state of Oklahoma at the time of this accident and injury, but that the common law governs and determines the liability of a driver of an automobile to his guest in Oklahoma, except as modified by a certain statute as to speed and careful driving which is criminal in effect, providing for a fine and jail sentence.

The answer admitted the collision between the automobile and the embankment of the underpass and that the deceased was driving at the time and place of the accident, but alleged that the deceased and the other three young people, including the plaintiff, were engaged in a joint enterprise, going to a dance at Ponca City, Okl., and the deceased was the agent of the plaintiff and others, and plaintiff assumed and was bound by any alleged negligence of the deceased.

The jury returned a verdict for plaintiff against the estate of the deceased for $12,500, and answered a number of special questions. Judgment was rendered for plaintiff, from which the defendant appeals raising many questions and assignments of error.

The first assignment of error argued by appellant is the failure of the trial court to sustain the demurrer of defendant to the evidence of the plaintiff and to give an instruction concerning the requirement of gross and wanton negligence under the Kansas guest statute, Rev. St. Supp. 1933, 8--122b, which is as follows: "That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payments for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle."

The first question for consideration is whether the Kansas guest statute applies to this accident which occurred in Oklahoma, when recovery for the injuries received is being sought through the courts of Kansas. Our guest statute, enacted in 1931, and the reasons for its enactment and enforcement is thoroughly discussed and considered in the case of Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573.

Appellant cites the case of Young v. Nave, 135 Kan. 23, 10 P.2d 23, where in an action on a promissory note and mortgage, made and payable in Indiana, and providing for the payment of an attorney fee, which was valid in Indiana, it was "*** held, the judgment was forbidden by a statute of this state, R. S. 67--312, which the district court was not at liberty to disregard for the sake of comity." (Syl. par. 1.)

It is worthy of notice and comparison as to the prohibitive language in this statute as compared with that in the guest statute. In the attorney fee statute it is stated that "hereafter no court in this state shall render any judgment, order or decree by which any attorney's fees shall be allowed or charged to the maker of any promissory note, bill of exchange, bond, mortgage, or other evidence of indebtedness by way of fees, expenses, costs or otherwise" (Rev. St. 1923, § 67--312), whereas in the guest statute the negative provision is "that no person*** shall have a cause of action," etc. The plaintiff's cause of action here is an Oklahoma matter, and the courts are not prohibited in the guest matter from rendering a judgment on a cause of action arising in another state.

It was held in the early days of the enforcement of the liquor laws in Kansas in the case of Distilling Co. v. Nutt, 34 Kan. 724, 10 P. 163, that "mere knowledge by the vendor of goods, lawfully sold in one state, that the vendee intends to use them in violation of law in another state, will not defeat an action brought in such other state by the vendor against the vendee for the purchase price of the goods. In order that the action in such a case may be defeated, it must be further shown that the vendor sold the goods for the purpose that the law should be violated, or that he had some interest in its violation, or that he participated in some manner in the unlawful purpose." (Syl.)

This case is cited in 49 A.L.R. 1005, among decisions from many states under the heading of "Enforcing foreign contract, valid where made, for sale of intoxicating liquor."

In the case of Otey v. Railroad Co., 108 Kan. 755, 197 P. 203, it was held: "In a cause of action arising in another state, the sufficiency of the evidence to sustain such an action when brought in this state is governed by the Kansas law of evidence." (Syl. par. 2.) The case of Koster v. Matson, 139 Kan. 124, 30 P.2d 107, 109, was an action, prosecuted in this state, to recover damages for personal injuries sustained in an automobile accident in Nebraska under a guest statute of that state, and it was stated in the opinion that "since the accident occurred in Nebraska, the liability of defendant is to be determined by the law of that state." The fact that Kansas also had a similar guest statute was not involved in the case.

It was said in Roseberry v. Scott, 120 Kan. 576, 244 P. 1063, that causes of action arising in another state will be enforced in this state unless to do so would be contrary to the laws or public policy of Kansas. Page 579 of 120 Kan., 244 P. 1063.

If the liability is fixed by the law of the place of the injury in the case at bar, Oklahoma, there is nothing against public policy in the courts of Kansas enforcing such liability, as the petition alleges that the state of Oklahoma has the same common law as to liability of a driver of an automobile as we have, but we, in addition to such, or in modification thereof, have the guest statute, which Oklahoma does not have. The case of Hamilton v. H. & St. J. R. Co., 39 Kan. 56, 60, 18 P. 57, 60, was where a railroad employee was killed in Missouri, and the widow brought the action in the courts of Kansas where it was said in the opinion: "*** Where a right of action becomes fixed, and a legal liability incurred, under the statute law of a state, such action is transitory, and the liability may be enforced in the courts of any state which has jurisdiction of such matters, and can obtain jurisdiction of the parties."

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