# Kennedy v. Dixon

> Supreme Court of Missouri · March 10, 1969 · 439 S.W.2d 173

URL: https://www.frixlaw.com/law-library/cases/9777378

## Case

- **Full name:** Lillian KENNEDY, (Plaintiff) Respondent, v. Paul E. DIXON, Administrator of the Estate of Mary Towey, Deceased, (Defendant) Appellant
- **Court:** Supreme Court of Missouri
- **Decided:** March 10, 1969
- **Citations:** 439 S.W.2d 173; 1969 Mo. LEXIS 907
- **Precedential status:** Published
- **Opinion:** Dissent by Storckman
- **Judges:** Finch, Holman, Seiler, Donnelly, Storckman, Henley, Morgan
- **Cited by:** 164 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9777378

## How later opinions describe it (automated extraction)

- holding that the rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship.

## Opinion text

STORCKMAN, Judge
(dissenting).
I agree in the circumstances of this case that the plaintiff as respondent was entitled to urge alternatively that she was entitled to submit her case on count one if her judgment was not sustainable on counts two or three.
A respondent on appeal may attack erroneous rulings of the trial court in order to sustain a judgment in his favor. Siemer v. Schuermann Building & Realty Co., Mo., 381 S.W.2d 821, 828 [5]; St. Charles Savings Bank v. Denker, 275 Mo. 607 , 205 S.W. 208 , 212 [11].
Further, where an appellate court reverses a judgment, it may in its discretion remand the cause for a new trial on material issues which have not been fully litigated. Radford v. Radford, Mo., 388 S.W.2d 33, 40 [13]; Downing v. Dixon, Mo., 313 S.W.2d 644, 652 [16]; Blaser v. Coleman, 358 Mo. 157 , 213 S.W.2d 420, 423 [8, 9]. In Blaser v. Coleman, plaintiff’s judgment under the humanitarian doctrine was reversed and this court remanded for a new trial on primary negligence which had been abandoned. For additional decisions recognizing the court’s discretion in this regard, see Missouri Digest, Appeal and Error Key No. 1177(6), and 5B C.J.S. Appeal and Error § 1942, p. 494.
The principal opinion, however, places its decision in this regard on the ground that the plaintiff “had no right to appeal”. This may be misleading and encourage parties not to file a notice of appeal where the better and safer practice would be to do so. Clearly, the plaintiff would have had no standing to maintain her appeal if the judgment debtor had not appealed. Since the defendant did appeal, it would have made a more orderly and informative presentation if the plaintiff had alternatively briefed her point as to count one as an appellant. Such practice is not uncommon. It would have avoided the controversy as to procedural rights and the hazard of the respondent being wrong in her choice.
While I agree that the alleged error of the trial court could be urged by the plaintiff as a respondent, I cannot agree that it has been demonstrated that the lex loci *187 delicti rule is outmoded and should be abandoned. As the principal opinion recognizes the Proposed Official Draft of the Restatement (Second) on Conflict of Laws lacks the certainty of the present practice and has been adopted by less than a fourth of the states. Our own rules and decisions admonish us not to interfere with the judgment of a trial court unless it is clearly erroneous. The prior decisions of this court should be accorded the same deference.
In these days when the role of the rule of law is- becoming more indistinct and less respected, there is virtue in refusing to experiment when the need is not clearly demonstrated. As I see it, the Restatement rule cannot assure a uniformly more just result. In permitting one litigant to shop around for the most favorable forum, the other party may be put to a greater disadvantage not anticipated or deserved.
The two views were well briefed and presented by the briefs and arguments of the parties. It would serve no useful purpose to repeat their alleged merits and demerits here.
For the reasons given, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777378. Public record. Not legal advice.