Albrecht v. Safeway Stores, Inc.

• Decision Date: 04 May 1938
• Citation: Albrecht v. Safeway Stores, Inc., 159 Or. 331, 80 P.2d 62 (Or. 1938)
• Parties: ALBRECHT <I>v.</I> SAFEWAY STORES, INC., ET AL.
• Court: Oregon Supreme Court

159 Or. 331

80 P.2d 62

ALBRECHT

v.SAFEWAY STORES, INC., ET AL.

Supreme Court of Oregon.

Argued at Pendleton May 4, 1938.

Affirmed June 14, 1938.

Automobiles — Statutes — Construction

1. In construing automobile guest statute, court bears in mind the evils which brought about its enactment.

Automobiles — Statutes — Construction

2. The automobile guest statute is designed to relieve the harshness of the common-law rule which requires the exercise of ordinary care even to a recipient of the driver's kindness and hospitality.

Automobiles — Guest

3. Within guest statute, a "guest" is one who accepts a ride in any motor vehicle without payment therefor and for his own pleasure or business receiving the hospitality of the owner or driver.

Automobiles — Payment

4. Within guest statute, the word "payment" does not necessarily mean money compensation and is not to be considered in its strict legal sense as the discharge in money of a sum due, and includes the acceptance of a ride for the purpose of conferring some substantial benefit upon the owner.

Automobiles — Payment

5. The occupant of an automobile may make payment for his transportation so as not to be a guest, within guest statute, although payment is of such a nature as not to be recoverable in an action at law.

Automobiles — Guest — Payment

6. The determination of whether an automobile occupant has made payment for his transportation so as not to be a guest within guest statute depends on whether some substantial benefit has been conferred on the owner.

Automobiles — Guest and host

7. Whether an automobile occupant suing for injuries sustained in a collision was a guest within guest statute or had performed services for driver in the nature of payment for transportation was for jury, where occupant rode with driver on a long trip through the mountains in winter to share driving and be of assistance if an emergency arose.

Automobiles — Guest and host

8. Generally, the status of an automobile guest is not changed because guest does part of the driving at operator's request, since the benefit is too trivial to change the relationship.

Automobiles — Gross negligence

9. An automobile occupant suing for injuries sustained in a collision did not waive his right to claim that he was not a guest within guest statute by alleging defendants' gross negligence which, if proven, would have entitled him to recover even as a guest.

Negligence — Pleading and proof

10. Under an allegation of gross negligence, proof may be made and recovery had for simple negligence upon the theory that the greater wrong included the lesser.

Automobiles — Guest and host

11. In automobile occupant's action for injuries sustained in a collision, whether defendant driver who was the district manager of defendant chain store company acted within the scope of his authority, express or implied, in taking occupant with him as an assistant on an inspection trip was for jury.

Trial — Insurance

12. In automobile occupant's action for injuries sustained in a collision, court's refusal to direct a mistrial because owner of colliding automobile testified that son who was driving when collision occurred has been refused permission to use automobile because there was no insurance was not error, where no effort was made to show that owner and driver of automobile plaintiff occupied was insured.

Trial — Instructions — Negligence

13. In automobile occupant's action for injuries sustained in a collision, instructions using the term "negligence" were not misleading as against contention that occupant was a guest who could only recover for "gross negligence," in view of all other instructions properly presenting such issues.

Automobiles — Agency

14. In automobile occupant's action for injuries sustained in a collision, testimony that defendant driver, who was district manager of defendant chain store company, had taken fellow employees and others on inspection trips with him on other occasions was relevant and competent as tending to show that company knew or should have known of such practice.

Automobiles — Evidence

15. In automobile occupant's action for injuries sustained in a collision, testimony that defendant chain store company which owned automobile did not limit courtesies extended by company's employees should have been excluded as having no bearing on issues, but its admission was harmless.

Evidence — Automobiles

16. In automobile occupant's action for injuries sustained in a collision, evidence that automobile's speedometer registered 60 miles per hour after the accident was admissible in spite of expert witness' testimony that position of speedometer did not indicate previous speed, since expert's testimony only affected weight to be given evidence.

Damages

17. $29,000 as damages for serious and permanent injuries sustained by a railway mail clerk was not excessive.

  Who is guest within contemplation of statute regarding
                liability of owner or operator of automobile for injury to
                guest, note, 95 A.L.R. 1180. See also, 5 Am. Jur. 634
                  42 C.J. Motor Vehicles, § 802
                

In Banc.

Appeal from Circuit Court, Baker County.

CALVIN L. SWEEK, Judge.

Action by Henry Albrecht against Safeway Stores, Inc., H.M. Howard, and others for injuries sustained in an automobile accident.Verdict and judgment for plaintiff against named defendants, and they appeal.

AFFIRMED.

James T. Donald, of Baker (Jay Bowerman and Hallock, Donald & Banta, all of Baker, on the brief), for appellants.

A.S. Grant, of Baker (Heilner, Smith, Grant & Fuchs, of Baker, on the brief), for respondentHenry Albrecht.

R.J. Green, of La Grande (Green & Hess, of La Grande, on the brief), for respondentsGeorge Velvin and Thomas Velvin.

BELT, J.

This is an action to recover damages for personal injuries sustained in an automobile accident which occurred on the John Day highway about 17 miles north of the city of Burns in Harney county, Oregon.Verdict and judgment were had in favor of the plaintiff against the defendantsH.M. Howard and the Safeway Stores, Incorporated, in the sum of $29,000.No damages were found against the defendantsGeorge Velvin and Thomas Velvin.

H.M. Howard is the district manager of the Safeway Stores and has general supervision of stores owned and operated by his employer in five counties in eastern Oregon, including Harney county.Among other things it is his duty, as district manager, to inspect these various stores and to haul merchandise from one store to another.Howard used his own automobile in making these trips of inspection and was paid by his employer four cents a mile to cover traveling expenses.While returning from Burns to Baker on one of these monthly inspection trips, a head-on collision occurred between the Oldsmobile driven by Howard and a Ford owned by defendantGeorge Velvin and operated by his son, Thomas Velvin, who was transporting some high school boys to Burns to play football.The plaintiff, who was riding with Howard, was seriously and permanently injured as a result of the accident.

One of the principal contentions of appellants is that the trial court should have declared as a matter of law that the plaintiff, while being so transported, was a guest and that it was error to submit to the jury the question of the status of the plaintiff.Such assignment of error requires a more detailed statement of the facts.

Plaintiff testified that on the morning of November 15, 1935, his brother-in-law, Howard, telephoned "and wanted me to go over to Burns with him" in his automobile to inspect the store at that place, but "I told him I didn't want to go.I couldn't go."Howard, however, came down to the plaintiff's home and insisted upon his going.While there, Howard said that "he wanted me to go along — he might need some help, and that his wife didn't want him to make it alone, and he wanted me to go along and help drive."

This standard, oiled macadamized highway traverses a mountainous section of the state, with many blind hairpin curves.At the time in question the road was extremely slippery as it was covered with a thin coating of ice and snow.The distance from Baker to Burns is 167 miles.Plaintiff received no compensation for making the trip and the expenses thereof, including hotel room and meals, were paid by Howard.Plaintiff was not an employee of the Safeway Stores but was a railway mail clerk and, under the rules of the government department, was prohibited from engaging in other employment.He was enabled to go with Howard by reason of a "five-day layoff".While Howard slept, he drove about 40 miles of the distance en route to Burns.Before returning from Burns to Baker, plaintiff assisted in loading several ten-pound sacks of salt in Howard's automobile to be transported to the store at Baker.

In the light of the above facts can it be said, as a matter of law, that plaintiff was merely a guest?What was the motivating influence in his going?Did he go for his own social pleasure or business, or was it to confer some substantial benefit upon Howard in the furtherance of the Safeway Stores' business?If different reasonable inferences can be drawn from the evidence concerning the status of the plaintiff, the question was one for the jury.If the only reasonable deduction is that plaintiff was merely a guest, the court should have so decided as a matter of law.

Relative to this phase of the casethe court instructed the jury that if it found plaintiff was a guest there could be no recovery against the Safeway Stores.The court also instructed that whether the plaintiff was a guest or a passenger at the time of this accident depended upon whether "he went merely for pleasure or for company for Howard or whether he went for the purpose of assisting Howard in the performance of some service."

The guest statute of this state (§ 55-1209,Oregon Code 1930) provides:

"No person transported by the owner or operator of a motor vehicle as his...