Wallis v. Mrs. Smith's Pie Co.

• Decision Date: 16 May 1977
• Docket Number: No. 76-390,76-390
• Citation: 550 S.W.2d 453,261 Ark. 622
• Parties: , 86 A.L.R.3d 1196 Thomas Jeff WALLIS et al., Appellants, v. MRS. SMITH'S PIE COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 453

550 S.W.2d 453

261 Ark. 622, 86 A.L.R.3d 1196

Thomas Jeff WALLIS et al., Appellants, v. MRS. SMITH'S PIE COMPANY, Appellee.

No. 76-390.

Supreme Court of Arkansas, In Banc.

May 16, 1977.

W. S. Walker and Gene C. Campbell, Harrison, for appellants.

William A. Storey of Storey & McCord, Fayetteville, for appellee.

ROY, Justice.

On the morning of December 30, 1973, appellants Thomas Jeff Wallis and his mother, Mary Ethel Wallis, residents of Berryville, Arkansas, were returning to their home from a trip to Ohio. While traveling west on Interstate Highway # 44 at a point within the city limits of Rolla, Missouri, they were involved in a motor vehicle accident with a large tractor-trailer truck driven by William Howard Long, agent of Mrs. Smith's Pie Company. The ultimate destination of the truck was Oklahoma. Long is a resident of Pennsylvania, and Mrs. Smith's Pie Company is a foreign corporation with its principal place of business in Pennsylvania and authorized to do business in Arkansas under Ark.Stat.Ann. §§ 73-1754, et seq. (Repl.1957), the Motor Carrier Act.

Wallis and his mother each brought an action against appellee Mrs. Smith's Pie Company in Arkansas in Carroll Circuit Court for injuries they sustained as a result of the accident. The cases were consolidated for trial purposes only, and the jury returned individual verdicts in favor of appellee against each appellant. From said verdicts this appeal is brought.

At the trial Wallis, who was driving a 1967 Cadillac, testified they had been traveling about an hour when they ran into a heavy snowstorm. Because of the accumulation of ice and snow, the right lane of the interstate on which they were traveling had become hazardous and so he pulled into the left lane which he thought was in better condition.

Long had been following a furniture van in the right lane of the highway for about five miles. Immediately before the accident appellee's vehicle driven by Long changed into the passing lane and struck the Cadillac from the rear. At the time of the accident the truck was traveling approximately 50 miles per hour while the Wallis vehicle was traveling at a speed of about 20 to 35 miles per hour.

The Missouri state trooper investigating the accident testified the roads were so slick his car slid past the accident. He further stated appellants complained of back injuries and were taken to a Rolla hospital for treatment although they showed no physical sign of injury. After being released from the hospital, appellants continued to Arkansas, arriving home around midnight of the day of the accident. For injuries allegedly suffered in the accident they received treatment from various physicians for several months. Thereafter Wallis sought damages in the amount of $250,000 while his mother sought $50,000.

The issue of the applicable state law was raised by appellee in its answer, contending that Missouri law controlled. Appellants urged Arkansas law was controlling. The court made no specific ruling on this issue prior to trial, but did apply Missouri law. Wallis admitted in his testimony he was aware of a Missouri statute which required automobiles to travel in the right-hand lane of a highway having two or more lanes of traffic proceeding in the same direction except under certain specified conditions not applicable here. ¹

At the close of the evidence during the in-chambers discussion concerning the instructions to be given to the jury, appellants' counsel objected to the application of Missouri law to the case. Thereafter, the following instructions were given:

Instruction No. 20. There was in force in the State of Missouri and City of Rolla at the time of the occurrence a statute which provided: "All vehicles in motion upon a highway having two or more lanes of traffic proceeding in the same direction shall be driven in the right hand lane except when overtaking and passing another vehicle or when preparing to make a proper left turn or when otherwise directed by traffic markings, signs or signals." A violation of this statute is negligence.

Instruction No. 21. If you find that the plaintiff through his own negligence placed himself in a perilous position which was later discovered by the defendant or which by the exercise of ordinary care should have been discovered by the defendant in sufficient time to avoid the collision, then you must compare the negligence of each. If the negligence of plaintiff was of less degree than the negligence of defendant, then the plaintiff is entitled to recover damages you may find he has sustained as a result of the occurrence after you have reduced them in proportion to the degree of his own negligence.

Instruction No. 22. Mrs. Smith's Pie Company has pleaded a defense of contributory negligence of Thomas Jeff Wallis. If you find that plaintiff, Thomas Jeff Wallis, operated his vehicle in a negligent manner and that such negligence was a proximate cause of his own damages then you will find for Mrs. Smith's Pie Company on Tommy J. Wallis's complaint.

The first point raised on appeal is that the trial court erred in instructing the jury on the law of Missouri absent proof of that law in the record. As a procedural matter we find no merit in this contention.

The issue of whether Missouri law was applicable was raised by the pleadings and was sufficient notice under Arkansas statutes. This procedure comports with Ark.Stat.Ann. § 27-2504 (Supp.1975), a part of the Uniform Interstate International Procedure Act, which reads:

A. Notice. A party who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this State shall give notice in his pleadings or other reasonable written notice.

B. Materials to be considered. In determining the law of any jurisdiction or governmental unit thereof outside this State, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence.

C. Court decision and review. The court, not the jury, shall determine the law of any jurisdiction or governmental unit thereof outside this State. Its determination is subject to review on appeal as a ruling on a question of law.

Under Ark.Stat.Ann. § 28-109 (Repl.1962), Arkansas courts are required to take judicial notice of the statutory laws of other states, and we have held it is only necessary to plead foreign law, not prove it. See F. E. Creelman Lumber Co. v. Lesh, 73 Ark. 16, 83 S.W. 320 (1904). In light of these statutes we find compliance with the necessary procedure for introducing foreign law.

The only other point for reversal urged by appellants is that it was error to apply the law of Missouri to the proceedings.

Appellants are residents of Arkansas while appellee is a Pennsylvania corporation authorized to do business in Arkansas. The accident occurred in the State of Missouri. This Court has previously been committed to the rule that in tort cases where damages are sought for personal injuries, the substantive law of the state where the accident occurred is controlling. See Bell Transportation Co. v. Morehead, 246 Ark. 170, 437 S.W.2d 234 (1969), and McGinty v. Ballentine, 241 Ark. 533, 408 S.W.2d 891 (1966).

In Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), the rationale of this traditional approach was stated as follows:

* * * It had its conceptual foundation in the vested rights doctrine, namely, that a right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law (citations omitted). * * *

The advantage of this rule lies in its certainty, ease of application and predictability of results.

However, application of this rule is a cause of concern to this Court because Missouri follows the doctrine of contributory negligence which is a complete defense to any action brought by a negligent plaintiff. See Howard v. Scarritt Estate Co., 267 Mo. 398, 184 S.W. 1144 (1916), and Chandler v. Mattox, 544 S.W.2d 85 (Mo.App.1976). See also Powell Bros. Truck Line, Inc. v. Barnett, 194 Ark. 769, 109 S.W.2d 673 (1937). Arkansas, on the other hand, follows the more modern rule of comparative fault which apportions liability between plaintiff and defendant and permits the injured plaintiff to recover as long as his fault is less than that of defendant.

The traditional rule of lex loci delicti has fallen under much criticism in recent times and quoting from Babcock, supra, we find the following comment:

. . . (T)he vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations in evaluating the significance to be ascribed to the circumstance that an act had a foreign situs in determining the rights and liabilities which arise out of that act. "The vice of the vested rights theory," it has been aptly stated, "is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved (citation omitted)." More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues. * * *

A number of jurisdictions are departing from a mechanical application of the traditional rule and applying a more flexible approach when faced with a situation which involves a choice of law between jurisdictions that have widely dissimilar laws. For example, in Woodward v. Stewart, 104 R.I. 290, 243 A.2d 917 (1968), the court considered a negligence action which involved a Massachusetts accident with all parties being Rhode Island residents. After examining several cases, the court stated:

* * * The clear import of the line of cases adopting the rule of flexibility, however, is that a forum court is free to apply the substantive laws of a state, other than the locus,...