Stevers v. Walker

• Decision Date: 30 January 1939
• Docket Number: No. 19343.,19343.
• Citation: 125 S.W.2d 920
• Parties: MARGARET L. STEVERS, APPELLANT, v. RICHARD A. WALKER, RESPONDENT.
• Court: Missouri Court of Appeals

125 S.W.2d 920

MARGARET L. STEVERS, APPELLANT, v. RICHARD A. WALKER, RESPONDENT.

No. 19343.

Kansas City Court of Appeals. Missouri.

January 30, 1939.

Appeal from Jackson Circuit Court. — Hon. Brown Harris, Judge.

AFFIRMED.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for appellant.

(1) The Court erred in refusing to submit to the jury the issue of defendant's willful and wanton conduct in the operation of the automobile which caused plaintiff's injury, and erred in forcing plaintiff to take an involuntary nonsuit over the objection and exception of plaintiff. Section No. 8-122b, General Statutes of Kansas, 1935; Randol v. Klines, Inc., 322 Mo. 746, 18 S.W. (2d) 500, l.c. 505; Cohee v. Hutson, 57 Pac. (2d) 35, l.c. 37 (Kan.); 20 R.C.L., page 145, section 118; McCarty v. Bishop, 231 Mo. App. 604, 102 S.W. (2d) 126, l.c. 128; Agee v. Herring, 221 Mo. App. 1022, 298 S.W. 250, l.c. 253; Watkins v. Spears Ship by Truck, 72 S.W. (2d) 818 (Mo. App.); Chandler v. Quinlan, 78 Pac. (2d) 235, l.c. 236; Hagglund v. Nelson, 73 Pac. (2d) 265, l.c. 267 and 268; Castro v. Singh, 21 Pac. (2d) 169, l.c. 172; Hagen v. Metzger, 20 Pac. (2d) 117, l.c. 118; McLain v. At. Ice & Cold Stg. Corp., 187 S.E. 153, l.c. 154; Schachtrup v. Hensel, 295 Ill. App. 303, 14 N.E. (2d) 897, l.c. 901; Reiff v. Mirring, 3 N.E. (2d) 165 (Ill. App.); Francesconi v. Belluonini et al., 83 Pac. 298, l.c. 300.

J. Francis O'Sullivan for respondent.

Maurice J. O'Sullivan, John M.P. Miller and O.H. Stevens of Counsel.

(1) This case must be determined under the Kansas law, and full faith and credit given to the Kansas Statute and decisions. Cox v. Terminal R. Asso. of St. Louis (Mo.), 55 S.W. (2d) 685; Burg v. Knox (Mo.), 67 S.W. (2d) 96; Sec. I, Art. 4 of the Constitution of the United States; John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 81 L. Ed. 106, and cases cited. (2) Plaintiff did not establish a cause of action under the Kansas law, so the trial court did not err in giving a peremptory instruction to the jury, or in refusing to set aside the involuntary nonsuit. Sec. 8-122b, General Statutes of Kansas, 1935; Aduddell v. Brighton, 141 Kans. 6, 17, 42 Pac. (2d) 555; Stout v. Gallemore, 138 Kans. 385, 26 Pac. (2d) 573; Sayre v. Malcolm, 139 Kans. 378, 31 Pac. (2d) 8; Ewing v. Edwards, 140 Kans. 325, 36 Pac. (2d) 1021; Anderson v. Anderson, 142 Kans. 463, 50 Pac. (2d) 995; Cohee v. Hutson, 143 Kans. 784, 53 Pac. (2d) 35.

SHAIN, P.J.

This is an action to recover for personal injuries alleged to have been received by plaintiff in an automobile accident which occurred in Johnson County, Kansas, on the 20th day of February, 1937, wherein plaintiff was a guest in defendant's car at the time.

Plaintiff in her petition states a cause of action based upon gross and wanton negligence of plaintiff in the operation of his car in which she was a guest. The statute of Kansas is plead and it stands admitted as the law of the case.

The plaintiff sets forth the guest law of the State of Kansas as follows:

"8-122b. Right of Guest to Collect Damages from Owner or Operator. 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."

Trial was by jury and at the close of plaintiff's evidence the court gave a peremptory instruction in the nature of a demurrer to the evidence directing a verdict for defendant. Objection and exceptions were duly made and taken. Before said instruction was read to the jury plaintiff suffered and took an involuntary nonsuit with leave to set aside. A motion was duly filed by plaintiff to set aside the involuntary nonsuit and for cause to be reinstated. The plaintiff's motion to set aside was duly taken up and considered by the court and same was overruled. From the action of court overruling motion, plaintiff duly appealed.

In our opinion we will continue to refer to appellant as plaintiff and respondent as defendant.

OPINION.

The questions for review in this cause involve claim of error in action of the trial court in giving the directed verdict for defendant and the action of court in refusing to set aside the involuntary nonsuit.

In determining the issues plaintiff is entitled to have considered the evidence alone that is most favorable to her. We consider that the plaintiff's own evidence is clear and cogent as to happening of events and plaintiff is entitled to every reasonable inference that can be drawn from same. In the direct testimony of plaintiff the record shows as follows:

"The car they rode in was a Pontiac Sedan. Before they went to the Walker home it had started storming. It was snowing but not sleeting. The wind was blowing quite hard. The storm had not abated to her knowledge when they left the Walker home, nor had it grown any worse. After leaving the Walker home, they drove over 75th Street to Highway 69, turned to the right, and drove north to 69th Street. When they reached the intersection of 75th Street and U.S. Highway 69, the storm had not increased any to her knowledge. It was a cold evening and snowing at the time. They turned north on U.S. Highway 69 at its intersection with 75th Street. Mr. Walker drove on his side of the road. From the time they turned on U.S. Highway 69 at 75th Street until they approached the intersection of that highway with 69th Street, she stated:

"A. Yes sir, we kept remarking that he must take a great deal of caution due to the bad weather.

"Q. After those remarks were uttered was the speed slowed any? A. Yes, sir.

"Q. Did he at any time thereafter increase his speed regardless of the remarks? A. Off and on we would go a little faster and then slow down and go fast again and then slow down.

"Q. Who made those complaints in the automobile? A. Well, we were all — Mr. Stevers, Mrs. Walker and myself were all remarking to him to be careful on account of the bad weather.

"Q. What — strike it. You have in the past ridden in automobiles? A. Yes, sir.

"Q. You operated one yourself? A. Yes.

"Q. What would you say the average speed of the Walker car was from the time you hit Seventy-nine Highway at Seventy-fifth Street up to within 100 feet of Sixty-ninth Street? A. I would say we were going approximately twenty-five to thirty-five miles per hour.

"Q. Mrs. Stevers, had you ever before been to the Milburn Club? A. No, sir.

"Q. Did you know where it was located? A. Yes, sir.

"Q. Was there any suggestion on the part of the defendant Walker that you folks in the car should keep an eye open for a sign or something of that kind or character? A. Yes, sir.

"Q. As you traveled north, what, if anything, did you observe as you approached Sixty-ninth Street? A. Traffic — we were watching traffic very closely. We saw this car approaching us as we approached Sixty-ninth Street, and Mr. Walker slowed down, he made the remark then that we must watch for the sign which he wasn't quite sure where the entrance to Milburn was, and he told us to watch and we were all watching for this sign which would indicate the entrance to Milburn.

"Q. Where would you say the Walker car was in approximate number of feet from Sixty-ninth Street when this remark was made by Mr. Walker as to keeping a look-out for the sign? A. I would say about 100 feet.

"Q. About 100 feet. Now, tell the court and jury, after that remark was made if Mr. Walker continued to drive north on 69 Highway? A. Yes, sir.

"Q. And do you know where he was with reference to the approximate center of the highway? A. No, sir.

"Q. Would you say that at that time he was or was not on the right side of the road? A. He was on the right side of the road.

"Q. Who was it that first discovered that you were almost at Sixty-ninth Street where you should turn to the left? A. Mr. Stevers.

"Q. Did he make any remark calling that to Mr. Walker's attention? A. Yes. Then Mr. Walker made the remark that we must be getting close to it. Then Mr. Stevers spoke up and said `There is the sign post' and Mr. Walker slowed down to, I would say right around eight or ten miles per hour.

"Q. And what was the speed of his automobile as he reached the intersection of Sixty-ninth Street with U.S. Highway 69, would you say? A. He was going at least eight miles an hour.

"Q. When you reached the intersection of Sixty-ninth Street did you observe any other automobile traffic on that highway? A. Yes, sir. We noticed when we got to Sixty-ninth Street this car that was coming directly toward us headlights were at least I would say, 150 to 200 feet from where we were.

"Q. Now, as the automobile in which you were riding — strike that. Did this car continue — did this car — what direction did this car travel in — this car that you saw the headlights on? A. It was coming south.

"Q. It was coming south. Would you say from your observation of the car for the first time that it was — what side of the road it was traveling on? A. On its own side of the road.

"Q. On its own side of the road? A. Yes, sir.

"Q. And after this was observed by you, this southbound automobile traveling on the west side of the highway, did Mr. Walker continue north into Sixty-ninth Street? A. He did.

"Q. And did you keep your eye on this other car? A. Yes, sir, I was watching it very closely, because I was afraid that something might happen. I had a premonition.

"Q. Did this car continue? A. Yes.

"Q. Did you at that time form any judgment as to the speed of that automobile? A. I would say it was going between thirty-five and forty miles an hour.

"Q. And where was this car — strike that. Did Mr. Walker thereafter make a turn to go to the left across the highway and west on Sixty-ninth Street? A. Yes, sir.

"Q. At the time that this turn was first started was Mr....