Tillman v. Zumwalt

250 S.W.2d 142, 363 Mo. 167, 1952 Mo. LEXIS 642

• Court: Supreme Court of Missouri
• Decided: June 9, 1952
• Docket: No. 42419
• Status: Published

Opinions

ELLISON, C. J.

The plaintiff-appellant Beulah Tillman sued the defendant-respondent Zumwalt in the circuit court of Jasper County for $50,000 damages for injuries sustained in Kansas while riding as a guest in respondent’s automobile when it overturned on U. S. Highway 166 about 3% miles east of Baxter Springs. Respondent defended on the ground that he was not guilty of gross and [143] wanton negligence, as required by the Kansas “guest statute”, Sec. 8-122b, Gen. Stat. Ks. 1949, or that if he was the appellant was guilty of contributory negligence. The Missouri trial court endeavoring to conform to the Kansas law, sustained the defendant’s motion for a directed verdict at the close of the plaintiff’s case and entered judgment accordingly.

The plaintiff appealed and on submission of the cause in Division I of this court two of the judges concurred in an affirmance of that judgment and two dissented. There being no majority vote either way, the cause was ordered transferred to the court en banc. The sole question here is whether the trial court ruled correctly in sustaining the defendant-respondent’s demurrer to the evidence. The issue as to his liability, must rest on the merits — the facts and the proper construction of the Kansas" statute.

The casualty occurred on February 15, 1948, about 10:30 p.m. The highway was a black top road 24 feet wide. The weather was clear and the road dry, running somewhat upgrade toward the east, in which direction the automobile was traveling. It had hard clay, gravel and soil shoulders with no marked center line. No other vehicles were near or involved in the casualty. There was no defect in respondent’s automobile, which was comparatively new. According to appellant’s testimony, after the automobile had crossed a highway bridge at the east edge of Baxter Springs it started weaving at high speed and diverging from the eastbound driver’s right or south side of the road. Appellant noticed the speedometer showed a speed of over 70 miles per hour. In a deposition she had said 73 miles. It increased speed while it was swerving and appellant was thrown around in the car. That was all she remembered until she “came to” outside the car on the ground. Appellant further stated she had protested several times, asking respondent to slow down, and told him if he wouldn’t she wanted to get out or be taken back to Baxter Springs. She thought respondent was angry at her because he wouldn’t answer her protests. On this return trip he didn’t say a word to her.

Two members of the Kansas State Highway Patrol, Trooper Williams and Captain Monahan testified they visited early the next morning the place where the casualty had occurred. They examined the black top pavement and road shoulders for skid marks and the dirt shoulders for gouged out places. From the deep wheel tracks they found a motor vehicle had run from the paved portion and traveled a distance of 225 feet along the south edge of the road; then went back onto the improved portion and traveled a distance of 105 feet diagonally across the pavement; and finally went into the north ditch and continued a distance of 150 feet east. It appears that in the construction of the road dirt had been excavated from both sides to build an embankment or elevation for the shoulders and pavement. From three separate “gouges” in the earth on the north side the trooper concluded the automobile had rolled over three times.

Two photographs of the automobile were introduced in evidence. They showed it to be badly wrecked and distorted with the possible exception of the trunk at the back, which is not clearly shown in the pictures. Both officers testified the pavement and shoulders were dry. It was Captain Monahan’s recollection that the respondent told him he was driving about 85 miles per hour, and that he had had several highballs. Being asked on cross-examination if there wasn’t some mud in the ditches at the sides of the road, the Captain answered that he thought they were dry, but wasn’t sure.

There was no clear proof that respondent was intoxicated at the time, but that inference seems warranted. He and the appellant had come from Joplin, Missouri to attend a party given at her employer’s home in Baxter Springs. They had left from the home of a girl friend in Joplin where she had had one highball. She didn’t know whether respondent had had any. On the going trip to Baxter Springs appellant drove the automobile in a prudent manner and they engaged in conversation. Appellant testified she had one highball before dinner at the party in Baxter Springs and two after dinner. These with the one she [144] had before leaving Joplin made four during the entire period.

On the going trip from Joplin to Baxter Springs another couple rode with appellant and respondent, a Mr. and Mrs. Orville Lanham. During the party there respondent and Mr. Lanham had some trouble and the Lanhams were not with them on the return trip. Respondent left before one of the main events of the party — the showing of some motion pictures. Appellant waited outside some five minutes for him. At that time, she said, he did not appear to be intoxicated. Later she testified he was not under the influence of liquor when they left but that he would not talk to her as he had on the way over there. She thought he was angry. Captain Monahan of the Kansas State Highway Patrol testified that respondent told him at the hospital in Baxter Springs the morning after the casualty that he had had “several highballs” the night before.

Respondent’s amended answer to appellant’s petition pleaded in the alternative that he was or was not under the influence of intoxicating liquor at the time of the casualty, and that he was ignorant as to which of those alternatives was true; but that he was informed and believed one or the other of them was true. Then it denied he was intoxicated, but affirmed if he was appellant was guilty of contributory negligence in riding with him. Similarly the answer alleged that if respondent was guilty of gross and wanton negligence within the meaning of the Kansas guest statute, the plaintiff was guilty of contributory negligence in that she knew, or should have known, of respondent’s condition and the manner in which he might drive his automobile before she entered same, and after entering and riding with him she should have taken steps to protect herself, by remonstrating, or otherwise.

The Kansas guest statute, Section 8-122 b, General Statutes of Kansas, 1935, is as follows:

“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 payment 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 (L., 1931, Ch. 81, Sec. 1; May 28).”

Respondent’s brief says: “The Kansas Supreme Court in a long, unchanged line of decisions over a 20-year period, has never upheld a guest recovery for gross and wanton negligence,” citing sixteen Kansas decisions. It also quotes a definition of a wanton act appearing in In re Estate of Wright, 170 Kan. 600, 607, 228 Pac. (2d) 911, 917(7), decided March 10, 1951, as follows: “A wanton act is something’ more than ordinary negligence, and yet it is something less than willful injury; to constitute wantonnesss, the act must indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It might be said to include a willful, purposeful, intentional act, but not necessarily so; it is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result. ’ ’

In Davis v. Wyatt, 359 Mo. 963, 971, 224 SW. (2d) 972, 976 (2, 3), this court had occasion to determine the meaning of “wanton” or wantonness as used in the Kansas guest statute, and followed the definition given in Frazier v. Cities Service Oil Co., 159 Kan. 665, 666, 157 Pac. (2d) 822, which was substantially the same as that in the Wright case just cited and' quoted above. These and other decisions are cited in 44 Words & Phrases (Perm. Ed.) Pocket Part, p. 173, under a headnote “conscious failure to use due care” — with a realization of the imminence of danger to others. This Davis case cites Plant v. Thompson, Trustee, 359 Mo. 391, 397(2), 221 SW. (2d) 834, 837, a railroad personal injury suit, in which several Federal decisions were cited holding the conduct of the defendant or an employee was wanton, but the opinion in the Plant case held on the facts that the conduct [145] of the employees there was only negligent and not wanton.

In another decision cited by respondent, Mason v. Banta, 166 Kan. 445, 446, 449-50, 201 Pac. (2d) 654, the Kansas Supreme Court reversed the trial court and ordered a demurrer sustained to the plaintiff guest’s petition which alleged the following facts. The defendant wantonly drove his automobile at 47 miles per hour at night along a narrow muddy dirt and clay road about three miles from Lawrence, Kansas, with which he was familiar. The traveled portion was twelve feet wide and led around a curve, up a hill, and across a narrow bridge. During the ride from Lawrence the plaintiff had twice asked him to slacken his speed, but failed to do after they reached the dangerous part. The defendant ran into a ditch causing plaintiff’s injuries. The opinion cited several Kansas decisions, among them Donelan v. Wright, 148 Kan. 287, 81 Pac. (2d) 50, which was reviewed at some length.

In that case the defendant was driving along a highway at mid-, night at a speed of 40-45 miles per hour with his headlights turned off. His female guest, the plaintiff, protested repeatedly before they reached Solomon, Kansas, but not afterward, and about a mile beyond there Ms automobile collided with another. The Donelan opinion held that where there is obvious danger the guest must remonstrate and if necessary ask for an opportunity to leave the car; and “’if the danger increases the need of the .guest to take measures for his own safety becomes more imperative, and if he does nothing his negligence is the same grade as that of the driver and he cannot recover.” The decision ruled the allegations of the petition failed to make a submissible ease because part of them were conclusions, and because plaintiff did not further remonstrate after they had passed through Solomon, Kansas. The Mason case applied the same doctrine.

In the instant ease the appellant testified she protested several times, the first time after respondent started increasing the speed of the automobile, and when the car started weaving around she protested again. She protested “at intervals, bnt it was — -it couldn’t have lasted too long. ’ ’ After she had protested at least twice and the car speed was increased she told him if he didn’t slow up she wanted out or he could take her back to Baxter Springs. When the car went off the right side of the road she was thrown around and that was the last she could remember. On cross-examination she said she told respondent about three times to slow up; and that the car weaved across the center line two or three times before it went off the shoulder of the highway. There were some inconsistencies between her testimony and what she had said in a previous deposition, but these were for the jury. The Highway Patrol Trooper Williams testified the skid marks on the highway ran 225 feet along the south side of the pavement, thence 105 feet diagonally northeast across the pavement, and then 150 feet along the north ditch or shoulder where the car turned over three times as indicated by the “gouges” in the dirt. This was a total distance of 480 feet. It obviously had been traveling at high speed. We cannot see anything in this case indicating the appellant was tardy in her protests.

Eespondent further contends: “Plaintiff’s conditional protests, because they were conditional, ‘slow down or let me out, or take me back to Baxter Springs, ’ late in time, and not directed against weaving or going off the road, were not sufficient to take her out of the drastic contributory negligence cases in Kansas.” On these points respondent cites the Mason and Donelan cases, supra, and Naglo v. Jones, 115 Kan. 140, 222 Pac. 116. We are unable to find any pronouncement in any of these decisions that the guest in an automobile must protest specifically and unconditionally, and tell the car driver exactly what to do. Appellant here in the first instance did ask the respondent to retard the speed of the automobile, and when he persisted and drove the automobile still faster she asked him to let her out or take her back to Baxter Springs. It seems to us this was sufficient.

The point ruled in the Mason case at the pages cited was that a bare allegation of “gross and wanton negligence” was a mere [146] conclusion when unaccompanied by a statement of the facts constituting such negligence. But that is an entirely different thing. Also it defined wantonness, which we have already done citing the later Wright case, supra. In the Donelan case a jury was required to return a special verdict making separate findings on a number of issues of fact. The decision held their findings compelled the conclusion that the defendant was not guilty of gross and wanton negligence. The fact coercing that conclusion was that the guest had not complained for a mile before the casualty, although he had previously done so. In the Naglo case the plaintiff guest admitted he did not complain because the respondent was driving at a reckless speed of 65 miles per hour and too close to the side of the road. The plaintiff’s excuse was that the defendant was older than he and supposed to know his business, and that he (plaintiff) didn’t want to bother him. We see no merit in this assignment.

Two other assignments"in respondent’s brief are that there must be a realization on the part of the defendant, of the imminence of danger, and that there was no evidence in this ease showing the defend- and was conscious or knew of the weaving of the car or that it was about to go off the pavement, as required by Kansas law. In our view these assignments are wholly without merit. The definition of wantoness given in the late Wright case, quoted earlier in this opinion, is that the “wanton act must indicate a realization of the imminence of danger.” (Italics ours) As we interpret the decision it means that the facts may speak for themselves.

In this case the respondent- told Captain Monahan of the State Highway Patrol, according to the latter’s recollection, that his car speed when it went off the pavement was about 85 miles per -hour, and that he had had several highballs. The appellant testified the respondent “was driving all right until after we passed the bridge.” Then she noticed it was “weaving over the highway, not staying on his side of the road,” and she protested. This was while it was still on the road. She protested again and said she wanted to get out or be taken back to Baxter Springs. It was going over 70 miles per hour, swerving and increasing its speed. It “went off on the right side of the road. ’ ’ (Italics ours) It had increased its speed to 85 miles per hour at that time. This, in our opinion, was enough to make a prima facie case that respondent realized the imminence of danger.

Respondent’s brief in later assignments cites eases from other states, to which we shall not refer, except one from Missouri, Stevers v. Walker, 233 Mo. App. 636, 642-4(3), 125 SW. (2d) 920, 924 (3, 4). That decision which has never been cited since holds we will defer to the decisions of another state interpreting its own statutes, and it cites several Kansas decisions on the Kansas guest statute, the latest of which is Cohee v. Hutson, 143 Kan. 784, 57 Pac. (2d) 35, decided in May, 1936. Our Stevers case says the Kansas courts have ruled the guest statute there means that an automobile driver must have inflicted the injury to the plaintiff wilfully, or ‘ ‘ acted with such reckless disregard with realization of known imminent danger as amounted to willingness to injure.” We do not understand that to be the rule in Kansas now. As stated in the Wright case, supra, 170 Kan. l.c. 607, 228 Pac. (2d) l.c. 917 (7), the present doctrine is that wantonness comes between negligence on the one hand and wilful or malicious conduct on the other; that it is more than negligence and less than wilfulness.

In a supplemental typewritten brief respondent discusses three recent decisions which were interlined in appellant’s brief and referred to in the oral argument here, wherein the Kansas Supreme Court held the petition in a guest case under the-Kansas statute did state a good cause of action, and either affirmed the judgment of the trial court so holding, or reversed it where the trial court had held it did not. They are: Hanson v. Swain, 172 Kan. 105, 238 Pac. (2d) 517; Bisoni v. Carlson, 171 Kan. 631, 237 Pac. (2d) 404; Fyne v. Emmett, 171 Kan. 383, 233 Pac. (2d) 496. Respondent’s supplemental brief points out certain differences in the facts in those cases from the facts [147] in the cases cited in the original briefs. That is always true. But we can see no difference in principle between them and the facts in the ease before us.

For the reasons stated the judgment is reversed and the cause remanded for a new trial.

Tipton, Leedy, Hollingsworth and Hyde, JJ., concur; Gonlcling, J., dissents in separate opinion; Dalton, J., dissents and concurs in dissenting opinion of Gonkling, J.