Wolf v. Holton

• Citation: 224 S.W.2d 861
• Decision Date: 03 October 1949
• Docket Number: No. 21219.,21219.
• Parties: EXIE WOLF, RESPONDENT, v. ERNEST HOLTON, APPELLANT.
• Court: Court of Appeal of Missouri (US)

224 S.W.2d 861 EXIE WOLF, RESPONDENT,
v.
ERNEST HOLTON, APPELLANT. No. 21219. Kansas City Court of Appeals. Missouri. Opinion delivered October 3, 1949.

Appeal from Circuit Court of Boone County. — Hon. W.M. Dinwiddie, Judge.

REVERSED AND REMANDED WITH DIRECTIONS.

[224 S.W.2d 862]

Alexander, Ausmus & Harris and Warren D. Welliver for appellant.

The trial court erred in overruling appellant's motions for a directed verdict both at the end of plaintiff's evidence and at the end of all of the evidence. New Mexico Revised Statutes, 1941, Art. 10, Chap. 68, Sec. 68-1001; 96 A.L.R. 1480; 74 A.L.R. 1199; 86 A.L.R. 1146; Blashfield, Cyclopedia of Automobile Law, Vol. 4, Secs. 2322, 2325, 2333; Nelson v. Armistead, (Ill.) (1945) 63 N.E. 2d 648; Kitchens v. Duffield, (Ohio) (1948) 79 N.E. 2d 906, 45 C.J., Sec. 601, p. 1045; 59 C.J. Sec. 665, p. 1124; Masters v. Cardi, (1947) 186 Va. 261, 42 S.E. 2d 203; Orme v. Burr, (Fla.) (1946) 25 So. 2d 870; Stout v. Gallemore, (1933) 138 Kan. 385, 26 Pac. 2d 573; Restatement of the Law, Torts, Vol. II, Chap. 19, p. 1292; 5 Am. Jur., Automobiles, Sec. 242, p. 636; Russell v. Turner, (Iowa) (1944) 56 Fed. Supp. 455; Turner v. Buchanan, (Mich.) (1938) 94 F. 2d 723. Respondent did not make a submissible case under the authority of the New Mexico decision. Stalcup v. Ruzic, (1947) 185 P. 2d 298. Respondent did not make a submissible case under the authority of the Oklahoma decision which dealt with the New Mexico statute. Gill v. Hayes, (1940) 108 Pac. 2d 117. Respondent did not make a submissible case under persuasive authority of other jurisdictions. Gifford v. Dice, (1934) 269 Mich. 293, 257 N.W. 830, 96 A.L.R. 1477; Lennon et ux. v. Woodbury, (1935) 40 Pac. 2d 292; Fly v. Swink, (1933) 17 Tenn. App. 627, 69 S.W. 2d 902, 96 A.L.R. 1481. The trial court erred in admitting in evidence ration order 1 A and the included proclamation of a 35 mile per hour national speed limit. McAllister v. Calhoun, (1947) 205 S.W. 2d 40. The trial court erred in giving plaintiff's instruction "D." 5 Am. Jur., Automobiles, Sec. 242, p. 636; Gill v. Hayes, (Oklahoma) (1940) 108 Pac. 2d 117; Bordonaro v. Senk, (1929) 109 Conn. 428, 147 Atl. 136.

Boyle G. Clark, William H. Becker, Robert C. Smith, Jr., and Clark, Boggs, Peterson & Becker for respondent.

The trial court did not err in overruling appellant's motions for a directed verdict. Respondent's right of action was governed by the law of New Mexico. Section 68-1001, Article X, Chapter 68, Statutes Annotated of New Mexico — Laws, 1935, Chapter 15, Section 1, page 26; Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663; Stalcup v. Ruzic, 51 N.M. 377, 185 P. 2d 298; Compiled Laws of Michigan, 1929, Sections 46-48; 74 A.L.R. 1199; 86 A.L.R. 1146; 96 A.L.R. 1480. The respondent made a case of reckless and heedless disregard of her rights under the New Mexico law. Stalcup v. Ruzic, 51 N.M. 377, 185 P. 2d 298; McAllister v. Calhoun, 212 Ark. 17, 205 S.W. 2d 40; Masters v. Cardi, 186 Va. 261, 42 S.E. 2d 202; Bryll v. Bryll, 114 Conn. 668, 159 A. 884; Wolfe v. Marks, 277 Mich. 154, 269 N.W. 125. The respondent was not a guest within the meaning of the New Mexico statute having undertaken to pay for her transportation. Prager v. Isreal, 15 Calif. 2d 89, 98 P. 2d 729; Bailey v. Neal, 63 Ohio App. 62, 25 N.E. 2d 310; Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663; Gifford v. Dice, 269 Mich. 293, 257 N.W. 830, 96 A.L.R. 1477; Wolfe v. Marks, 277 Mich. 154, 269 N.W. 125; Lennon et ux. v. Woodbury, (Calif. App., 1935) 40 P. 2d 292; Stalcup v. Ruzic, 51 N.M. 377, 185 P. 2d 298; Fly v. Swink, 17 Tenn. App. 627, 69 S.W. 2d 902, 96 A.L.R. 1481; Berman v. Berman, 110 Conn. 169, 170, 147 A. 568; Gill v. Hayes, (Okla., 1940) 108 P. 2d 117; Orme v. Burr, (Fla., 1946) 25 So. 2d 870. Tire Rationing Order No. 1A was not only known actually to the appellant but was a matter of common knowledge and the subject of judicial notice. Federal Register Act, Chapter 8B, Title 44, U.S. Code Annotated, Sections 301-314, inclusive; Flannagan v. U.S., (C.C.A. Calif., 1944) 145 F. 2d 740; Wood v. Bartolino, 48 N.M. 175, 146 P. 2d 883; Huckleberry v. Missouri Pacific Railroad, 324 Mo. 1025, 26 S.W. 2d 980; U.S. ex rel. Brown, Administrator, Office of Price Administrator v. Lederer, 140 F. 2d 136, Certiorari Denied 322 U.S. 734, 88 L. Ed. 1568; Westside Fuel Service, Inc., v. Steiker, 133 N.J. 591, 45 A. 2d 491; Colonial Operating Corp. v. Hannan Sales and Service, Inc., 265 App. Div. 411, 39 N.Y.S. 2d 217; Minardus v. Zapp, (Court of Civil Appeals Texas, 1938) 112 S.W. 2d 496; Jones v. Atlantic Refinery Co., 55 Fed. Supp. 17. The appellant had actual knowledge of the government's war time regulation concerning the 35 mile per hour speed limit. Federal Register Act, Chapter 8B, Title 44, U.S. Code Annotated, Sections 301-314, inclusive; Flannagan v. U.S., (C.C.A. Calif., 1944) 145 F. 2d 740; Wood v. Bartolino, 48 N.M. 175, 146 P. 2d 883; Huckleberry v. Missouri Pacific Railroad, 324 Mo. 1025, 26 S.W. 2d 980; U.S. ex rel. Brown, Administrator, Office of Price Administration, v. Lederer, 140 F. 2d 136, Certiorari Denied 322 U.S. 734, 88 L. Ed. 1568; Westside Fuel Service, Inc., v. Steiker, 133 N.J. 591, 45 A. 2d 491; Colonial Operating Corp. v. Hannan Sales and Service, Inc., 265 App. Div. 411, 39 N.Y.S. 2d 217; Minardus v. Zapp, 112 S.W. 2d 496 (Court of Civil Appeals Texas, 1938); Jones v. Atlantic Refinery Co., 55 Fed. Supp. 17. The appellant admitted making two applications for replacements under Tire Rationing Order 1A. Said applications were unavailable for production at the trial and consequently Rationing Order 1A prescribing the conditions upon which applications were accepted by the Rationing Board was admissible in evidence. Where heedlessness and recklessness in the operation of a vehicle are concerned war time speed and tire regulations, personally known to the appellant, and subject to judicial notice are proper matters of consideration by the court and jury. McAllister v. Calhoun, 212 Ark. 17, 205 S.W. 2d 40; Masters v. Cardi, 186 Va. 261, 42 S.E. 2d 202. The trial court did not err in giving respondent's instruction D. In re Harlow's Estate, (Mo. App., 1945) 192 S.W. 2d 5. Appellant's instruction D did not instruct the jury that the appellant was guilty of negligence, per se, as he drove at a speed in excess of 35 miles per hour. McAllister v. Calhoun, 212 Ark. 17, 205 S.W. 2d 40; Masters v. Cardi, 186 Va. 261, 42 S.E. 2d 202.

VANDEVENTER, J.

Plaintiff (respondent here) sued defendant (appellant) for damages alleged to have been caused in an automobile accident which occurred in the State of New Mexico. Plaintiff obtained judgment for $5,000.00 and defendant appealed. An adjudication of the case involves the construction of the guest statute of New Mexico, as it is conceded by both appellant and respondent that the law of that state is applicable to this case.

Section 68-1001 of Chapter 10, Art. 68 of the New Mexico R.S. 1941 is as follows:

224 S.W.2d 863

"68-1001. Guests in Motor Vehicles — Right of action for damages for injury, death or loss. — No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of the said operator or owner or caused by his heedlessness or his reckless disregard of the rights of others (Laws, 1935, Ch. 15, Sec. 1, p. 26.)"

The trial court, after hearing the evidence, ruled that the plaintiff was a guest, although she alleged in her petition that she was to pay her proportionate share of the expense of operating the automobile on a trip from Columbia, Missouri to California and that she was not a guest. Respondent, although she did not appeal from the trial court's ruling, urges that this court should find that she was not a guest but was a fare-paying passenger. On this subject, her evidence shows that she remarked to the wife of the defendant, who, by the way, was her sister, that she did not wish to "sponge" off of them (her sister and defendant) on this trip and suggested that she would like to pay for part of the gas and oil used. At one time on the way she offered defendant's wife $10.00 to apply on expenses and it was refused. The defendant heard no such proposition and plaintiff's sister denied such conversation occurred, and it was conceded that no fare was actually paid and that no contribution was made to purchase gas and oil. The trial court was correct in its ruling that plaintiff was a guest. Morse v. Walker 229 N.C. 778, 51 S.E. (2) 496. Brody v. Harris, 308 Mich. 234, 13 N.W. (2) 273, 155 A.L.R. 573. McCann v. Hoffman 9 Cal. (2) 279, 70 Pac. (2) 909. 155 A.L.R. 575, Anno.

The next question is on the sufficiency of the evidence. Was there sufficient proof that the injuries alleged to have been sustained by the plaintiff were caused by defendant's "heedlessness or his reckless disregard of the rights of others?" Appellant contends that if any negligence were shown, it was only ordinary negligence and that his motion for a directed verdict should have been sustained.

In passing upon this question, we must consider only that evidence most favorable to the plaintiff, drawing every reasonable inference therefrom in her favor, that we should consider only such of the defendant's evidence as tends to prove the plaintiff's case and disregard all evidence in favor of the defendant. Sollenberger v. Kansas City Pub. Serv. Co. 202 S.W. (2) 25, 356 Mo. 454. Smith v. Siedhoff 209 S.W. (2) 233.

The evidence showed that in October, 1945, defendant and his wife planned to make a trip to California. It was part business (in which plaintiff had no interest) and part pleasure on their part. The plaintiff wanted to go and her sister wanted her to go because she (plaintiff) enjoyed trips and her sons...