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Neumeier v. Kuehner

Court of Appeals of New York

April 25, 1972, Argued ; July 7, 1972, Decided

No Number in Original


 [*123]  [**455]  [***66]    A domiciliary of Ontario, Canada, was killed when the automobile in which he was riding, owned and  [*124]  driven by a New York resident, collided with a train in Ontario. That jurisdiction has a guest statute, and the primary question posed by this appeal is whether in this action brought by the Ontario passenger's estate, Ontario law should be applied and the New York defendant permitted to rely on its guest statute as a defense.

The facts are quickly told. On May 7, 1969, Arthur Kuehner, the defendant's intestate, a resident of Buffalo, drove his automobile from that city to Fort Erie in the Province of Ontario, Canada, where he picked up Amie Neumeier, who lived in that town with his wife and their children. Their trip was to take them to Long Beach, also in Ontario, and [****7]  back again to Neumeier's home in Fort Erie. However, at a railroad crossing in the Town of Sherkston -- on the way to Long Beach -- the auto was struck by a train of the defendant Canadian National Railway Company. Both Kuehner and his guest-passenger were instantly killed.

Neumeier's wife and administratrix, a citizen of Canada and a domiciliary of Ontario, thereupon commenced this wrongful death action in New York against both Kuehner's estate and the Canadian National Railway Company. The defendant estate pleaded, as an affirmative defense, the Ontario guest statute and the defendant railway also interposed defenses in reliance upon it. In substance, ] the statute provides that the owner or driver of a motor vehicle is not liable for damages resulting from injury to, or the death of, a guest-passenger unless he was guilty of gross negligence (Highway Traffic Act of Province of Ontario [Ont. Rev. Stat. (1960), ch. 172], § 105, subd. , as amd. by Stat. of 1966, ch. 64, § 20, subd. ). It is worth noting, at this point, that, although our court originally considered  [***67]  that the sole purpose of the Ontario statute was to protect Ontario defendants and their [****8]  insurers against collusive claims (see Babcock v. Jackson, 12 N Y 2d 473, 482-483), "Further research * * * has revealed the distinct possibility that one purpose, and perhaps the only purpose, of the statute was to protect owners and drivers against suits by ungrateful guests." (Reese, Choice of Law, 71 Col. L. Rev. 548, 558; see Trautman, Two Views on Kell v. Henderson: A Comment, 67 Col. L. Rev. 465, 469.)

 [*125]  The plaintiff, asserting that the Ontario statute "is not available * * * in the present action", moved, pursuant to CPLR 3211 (subd. [b]), to dismiss the affirmative defenses pleaded. The court at Special Term, holding the guest statute applicable, denied the motions (63 Misc 2d 766) but, on appeal, a closely divided Appellate Division reversed and directed dismissal of the defenses (37 A D 2d 70). It was the court's belief that this result was dictated by Tooker v. Lopez (24 N Y 2d 569).

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31 N.Y.2d 121 *; 286 N.E.2d 454 **; 335 N.Y.S.2d 64 ***; 1972 N.Y. LEXIS 1127 ****

Joan Neumeier, as Administratrix of the Estate of Amie Neumeier, Deceased, Respondent, v. Irene Kuehner, as Administratrix of the Estate of Arthur Kuehner, Deceased, et al., Appellants

Prior History:  [****1]   Neumeier v. Kuehner, 37 A D 2d 70.

Appeals, by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from orders of said court, entered July 1, 1971, which (1) reversed orders of the Supreme Court at Special Term (Walter J. Mahoney, J.; opn. 63 Misc 2d 766), entered in Erie County, denying motions by plaintiff to dismiss the third affirmative defense in amended answers of defendants and (2) granted the motions. The following question was certified in each appeal: "Was the order of this court entered July 1, 1971 properly made?".

Disposition: Orders reversed, etc.


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