Towley v. King Arthur Rings, Inc. — 40 N.Y.2d 129

Majority

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Jan Towley, an Infant, by Her Father and Natural Guardian, Warren Towley, et al., Appellants, v King Arthur Rings, Inc., et al., Respondents.

Argued May 5, 1976;

decided June 15, 1976

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Robert M. Ginsberg and Roger Bennet Adler for appellants.

I. A prima facie case was made out under the Colorado guest statute. (Von Lackum v Allan, 219 F2d 937 .) II. Plaintiff has a right to have the evidence viewed most favorably to her and to have the most favorable inferences drawn therefrom. (Hoch Assoc. v Western Newspaper Union, 308 NY 461 ; Meiselman v Crown Hgts. Hosp., 285 NY 389 .) III. The questionable constitutionality of guest statutes in general should cause New York to refrain from their enforcement. (Pahmer v Hertz Corp., 32 NY2d 119 ; Miller v Miller, 22 NY2d 12 ; Looker v Lopez, 24 NY2d 569 ; Neumeier v Kuehner, 31 NY2d 121 .) IV. New York law should apply under conflict of laws’ principles. (Chila v Owens, 348 F Supp 1207 ; Miller v Miller, 22 NY2d 12 ; Gelbman v Gelbman, 23 NY2d 434 .) V. Defendants A. Arthur Altman and King Arthur Rings are also legally responsible for the injuries caused by defendant Mitchell Altman. (Farber

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v Smolack, 20 NY2d 198 ; Cunningham v McNair; 48 AD2d 546 .)

William F. Larkin for respondents.

I. This appeal should be limited solely to the issue of whether the evidence justified a jury question as to the liability of Mitchell Altman under Colorado law. (Aetna Cas. & Sur. Co. v Lafayette Nat. Bank of Brooklyn in N. Y., 28 NY2d 922 .) II. This action was correctly held to be governed by the laws of Colorado. (Dym v Gordon, 16 NY2d 120 ; Neumeier v Kuehner, 31 NY2d 121 .) III. The law of Colorado circumscribes the duty of defendant driver here and places no responsibility on the car owner or parent of defendant driver. (Gleich v Volpe, 32 NY2d 517 .) IV. The complaint against Mitchell Altman was properly dismissed as a matter of law according to the law of Colorado. (Hull v Littauer, 162 NY 569 ; Morris v Troy Sav. Bank, 32 AD2d 237 , 28 NY2d 619 ; Kerfoot v Kelley, 294 NY 288 ; Gleich v Volpe, 32 NY2d 517 ; Storrs v City of Utica, 17 NY 104 ; Applebee v State of New York, 308 NY 502 ; Rivera v City of New York, 11 NY2d 856 ; Rowlands v Parks, 2 NY2d 64 ; Crane v New York World Tel. Corp., 308 NY 470 ; Blum v Fresh Grown Preserve Corp., 292 NY 241 .)

Plaintiff Jan Towley, a resident of Iowa, met defendant Mitchell Altman, a resident of New York, in Colorado where both were vacationing. On July 27, 1971, Altman, with Jan Towley and three others as passengers, was operating a 1971 Chevrolet, in the Boulder, Colorado, area, downgrade along a curving mountain two-lane road. Although the speed limit in the vicinity varied from 25 to 40 miles per hour, Altman was driving approximately 45 to 50 miles per hour and was asked by passenger Kelleher to slow down on two occasions. To the second entreaty, Altman replied that his father had "just bought him this car, it was brand new, and it could take curves great”, but he did not reduce his speed. After passing a "snake” sign indicating a curve and while rounding a left turn described by the operator as a "blind curve”, the Chevrolet was "almost all” across double-yellow lines, dividing the highway, into the opposite lane, when a camper-vehicle appeared proceeding upgrade on its proper side. Altman swerved the Chevrolet back into its right lane and lost control, the car going over the right-hand embankment, flipping over and then landing in a stream. Skid marks, attributable to the Chevrolet and measuring 52 feet on the

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pavement and 84 feet on the shoulder, were found. Jan Towley suffered serious injuries.

The Chevrolet was registered in the name of defendant King Arthur Rings, Inc., of which defendant A. Arthur Altman, Mitchell’s father, was president. During trial, the son testified it was his father’s car.

The jury, applying Colorado law, returned a verdict for plaintiff Jan Towley in the sum of $200,000 and for her father on a derivative cause of action in the amount of $5,050. The trial court set aside the verdict as against King Arthur Rings, Inc., and A. Arthur Altman and granted the motion to set aside the verdict in favor of Jan Towley against Mitchell Altman, ordering a new trial on the ground of excessiveness unless said plaintiff stipulated to reduce the verdict to $150,-000. Jan Towley so stipulated and judgment was entered accordingly. On appeal, the majority of the Appellate Division modified the judgment, on the law, to the extent of reversing the judgment in favor of plaintiffs against defendant Mitchell Altman and dismissing the complaint. That court reasoned that under the Colorado guest statute an injured passenger can recover only if the driver’s negligence consists of "willful and wanton disregard of the rights of others” (Col Rev Stat, § 13-9-1) and that the evidence did not "show Altman to have been of a malicious or indifferent disposition toward his passengers nor heedless of his own safety.” ( 49 AD2d 555 , 556.)

Applying Colorado law to this case, as we should (Neumeier v Kuehner, 31 NY2d 121 ), our inquiry extends not only to the words of the guest statute itself but, even more importantly, to the judgmental determinations of the courts of that State in regard to it. A judgment^[1] is the law’s last word in a judicial controversy, it being the final determination by a court of the rights of the parties upon matters submitted to it in an action or proceeding (Wood v City of Salamanca, 289 NY 279 , 282; Matter of Steinberg v Mealey, 263 App Div 479 , 481, app dsmd 296 NY 614 ; Kiefer Mach. Co. v United States Bottlers Mach. Co., 108 F2d 469 , 470; 46 Am Jur 2d, Judgments, § 1). The court’s opinion is a statement of the reasons on which the judgment rests (Rogers v Hill, 289 US 582 , 587). Since it is only what a court adjudicates, not what it says in an opinion, that has any direct legal effect, a judgment of the court

* CPLR 5011, in defining a judgment, states that "[a] judgment is the determination of the rights of the parties in an action or special proceeding and may be either interlocutory or final.”

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controls over an opinion and, if they are at variance, the former prevails and determines the rights of the parties (People ex rel. McCanliss v McCanliss, 255 NY 456 , 462; People ex rel. Metropolitan Trust Co. v Travis, 107 Misc 377 , 382, affd 191 App Div 129 ; Macfadden v Macfadden, 49 NJ Super 356 ; 49 CJS, Judgments, § 22, p 51; 46 Am Jur 2d, Judgments, § 6, pp 316-317). Regardless of the manner in which the courts of Colorado may interpret willful and wanton negligence in connection with its guest statute, a review of the judgments of that State leads to the conclusion that in situations similar to that here the issue of willful and wanton negligence has been left within the province of the jury (see, e.g., Brown v Spain, 171 Col 205 ; Steeves v Smiley, 144 Col 5 ; Hennigar v Van Every, 139 Col 144 ; Gravitt v Sloggett, 132 Col 254 ; Clark v Hicks, 127 Col 25 ; Dameron v West, 126 Col 435 ).

While our own view of the quality of the testimony necessary to establish a prima facie case might be different, applying the law as it exists in Colorado to the instant facts, it cannot be said as a matter of law that the proof of willful and wanton conduct on the part of Mitchell Altman should not have been submitted to the jury. There was no proof justifying the imposition of liability on the other defendants.

The order of the Appellate Division is modified by deleting therefrom the provisions that the judgment in favor of plaintiffs against defendant Mitchell Altman be reversed and that the complaint be dismissed and by directing that the matter as between plaintiffs and said defendant be remitted to the Appellate Division for a review of the facts and, except as so modified, the order is affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Wachtler concur; Judge Fuchsberg taking no part.

Order modified, with costs to plaintiffs only against defendant Mitchell Altman, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

Cases cited

Fred W. Hoch Associates, Inc. v. Western Newspaper Union, Inc. 308 NY 461 N.Y. 1955-04-28 p. 130
Meiselman v. Crown Heights Hospital, Inc. 285 NY 389 N.Y. 1941-04-17 p. 130
Pahmer v. Hertz Corp. 32 NY2d 119 N.Y. 1973-03-23 p. 130
Miller v. Miller 22 NY2d 12 N.Y. 1968-04-18 p. 130
Tooker v. Lopez 24 NY2d 569 N.Y. 1969-04-23 p. 130
Neumeier v. Kuehner 31 NY2d 121 N.Y. 1972-07-07 p. 130, p. 131, p. 132
Gelbman v. Gelbman 23 NY2d 434 N.Y. 1969-01-09 p. 130
Farber v. Smolack 20 NY2d 198 N.Y. 1967-07-07 p. 131
Cunningham v. McNair 48 AD2d 546 N.Y. App. Div. 1975-07-10 p. 131
Aetna Casualty & Surety Co. v. Lafayette National Bank 28 NY2d 922 N.Y. 1971-05-13 p. 131
Dym v. Gordon 16 NY2d 120 N.Y. 1965-07-09 p. 131
Gleich v. Volpe 32 NY2d 517 N.Y. 1973-06-07 p. 131
Hull v. Littauer 162 NY 569 N.Y. 1900-05-01 p. 131
Morris v. Troy Savings Bank 32 AD2d 237 N.Y. App. Div. 1969-07-02 p. 131
Morris v. Troy Savings Bank 28 NY2d 619 N.Y. 1971-02-18 p. 131
Kerfoot v. Kelley 294 NY 288 N.Y. 1945-05-24 p. 131
Storrs v. City of Utica 17 NY 104 N.Y. p. 131
Applebee v. State 308 NY 502 N.Y. 1955-05-26 p. 131
Rivera v. City of New York 11 NY2d 856 N.Y. 1962-04-05 p. 131
Rowlands v. Parks 2 NY2d 64 N.Y. 1956-10-19 p. 131
Crane v. New York World Telegram Corp. 308 NY 470 N.Y. 1955-04-28 p. 131
Blum v. Fresh Grown Preserve Corp. 292 NY 241 N.Y. 1944-03-10 p. 131
Towley v. King Arthur Rings, Inc. 49 AD2d 555 N.Y. App. Div. 1975-07-10 at 556 p. 132
Wood v. City of Salamanca 289 NY 279 N.Y. 1942-12-03 at 282 p. 132
Smith v. Cole 296 NY 614 N.Y. 1946-07-23 p. 132
Rogers v. Hill 289 US 582 SCOTUS 1933-05-29 at 587 p. 132
People ex rel. McCanliss v. McCanliss 255 NY 456 N.Y. 1931-02-10 at 462 p. 133
People ex rel. Metropolitan Trust Co. v. Travis 107 Misc 377 N.Y. Sup. Ct. at 382 p. 133