Allison v. Ely, 30032

• Decision Date: 16 November 1960
• Docket Number: No. 30032,30032
• Citation: 241 Ind. 248,170 N.E.2d 371
• Parties: John ALLISON, Appellant, v. Charles ELY and Marie Easter, Appellees.
• Court: Indiana Supreme Court

Page 371

170 N.E.2d 371

241 Ind. 248

John ALLISON, Appellant, v. Charles ELY and Marie Easter, Appellees.

No. 30032.

Supreme Court of Indiana.

Nov. 16, 1960.

Rehearing Denied Jan. 31, 1961.

Fraser & Isham, William S. Isham, James A. Gardner, Fowler, for appellant.

N. George Nasser, Hansford C. Mann, Terre Haute, Karl M. Jacobs, Fowler, for appellee-Charles Ely.

BOBBITT, Judge.

This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Replacement. See: Allison v. Ely, 1959, 159 N.E.2d 717, for opinion of the Appellate Court.

It is an action for personal injuries arising out of a collision between a car driven by appellant, John Allison, and appellee, Marie Easter, wherein appellee, Charles Ely, was injured.

The case was tried in the lower court on the theory that appellee-Ely was riding in the car driven by appellant-Allison, as a fare-paying passenger.

Trial was by jury which returned a verdict of $15,500 against both appellant-Allison and appellee, Marie Easter. From the judgment on this verdict defendant-appellant, John Allison, appealed.

The determination of the principal issue raised in this case requires an interpretation of the meaning of the phrase 'while being transported without payment therefor' as it appears in Acts 1937, ch. 259, § 1, p. 1229, being § 47-1021, Burns' 1952 Replacement.

First: We are, however, confronted at the outset by appellee's assertion that appellant, by the submission of three instructions (Nos. 4, 6 and 17) on mere negligence 'invoked the theory that his own liability should be predicated on proof of negligence, and having asked that the jury be so instructed, he cannot complain that the jury determined his liability upon insufficient evidence that plaintiff was not a guest.'

The first numerical paragraph of the complaint herein alleges, inter alia, that 'the plaintiff, Charles Ely, was riding as a fare-paying passenger in the automobile of the defendant, John Allison.' This statement clearly established the theory of the case, and it was upon this theory that it was tried.

Appellee cites Gray v. Gray, 1931, 202 Ind. 485, 492, 176 N.E. 105, and Foster v. Pruett, 1938, 105 Ind.App. 367, 374, 15 N.E.2d 121, in support of his assertion that because appellant submitted instructions on negligence he thereby waived any question of the sufficiency of the evidence to establish that the plaintiff-appellee was a 'paying passenger' and not a 'guest' within the meaning of the Guest Statute.

In our opinion Gray v. Gray, supra, has no application to the question here presented, and Foster v. Pruett, supra, is clearly distinguished from the present case in that the instructions tendered and given in that case did, in fact, invoke a theory different from the one upon which the case was tried. That is not the situation here. Also, in the present case appellee, Marie Easter, was a co-defendant with Allison, she being the driver of the other car which was involved in the accident. Both appellee-Easter and appellant were alleged to be guilty of negligence in certain specific particulars. All three of these instructions referred to both defendants.

The ruling in the Foster case should be limited to the facts in that case, and this court is not inclined to extend the doctrine there applied, to the giving of instructions under any and all circumstances.

Appellant also tendered his Instructions Nos. 11, 13 and 23, which were given by the court, covering liability under the Guest Statute, and under all these circumstances it could scarcely be said that appellant invoked the theory that his own liability should be predicated on proof of negligence.

The theory that appellee was not a guest of appellant was established by appellee's complaint, and it was not changed by the submission by appellant of Instructions Nos. 4, 6 and 17. We find nothing in the record which would constitute a waiver of appellant's right to raise in this court the question of the sufficiency of the evidence to sustain appellee-Ely's burden that he was a fare-paying passenger as alleged in his complaint.

Second: Appellant asserts that there is no evidence 'from which a fair inference can be drawn to support the finding of the jury that the appellee Ely was a fare-paying passenger' and, therefore, he is not outside the scope of the Guest Statute (§ 47-1021, supra).

The burden was upon appellee-Ely to show by a preponderance of the evidence that he was a 'fare-paying' passenger and not a 'guest' within the meaning of the Guest Statute. Liberty Mut. Ins. Co. v. Stitzle, 1942, 220 Ind. 180, 186, 41 N.E.2d 133.

If appellee-Ely made 'payment' for his transportation the Guest Statute does not apply. However, this does not mean that such payment must necessarily have been made in money. It is sufficient if his (Ely's) presence directly compensated appellant 'in a substantial and material or business sense as distinguished from mere social benefit or nominal or incidental contribution to expenses' of the trip. Scholz v. Leuer, 1941, 7 Wash.2d 76, 109 P.2d 294, 299; Woolery v. Shearer, 1958, 53 Wash.2d 156, 332 P.2d 236, 238; Liberty Mut. Ins. Co. v. Stitzle, supra, 1942, 220 Ind. 180, 185, 41 N.E.2d 133; Lee Brothers v. Jones, 1944, 114 Ind.App. 688, 698, 54 N.E.2d 108.

An examination of the evidence most favorable to appellee discloses that some ten days before the accident in controversy Miami University had sponsored what it designated 'Dad's Day' at which time the parents of students, particulary the fathers, were invited to the University for a football game and other festivities. The parents of both the appellant and appellee-Ely attended 'Dad's Day' ceremonies in 1953, and met at the Sigma Nu House to which fraternity their respective sons John Allison and Charles Ely belonged. The Allisons lived in Naperville and the Elys in Downers Grove, Illinois, both towns being a few miles west of Chicago. Each set of parents had driven to Oxford in their respective automobiles. While conversing in the Fraternity House sometime during the 'Dad's Day' weekend it was agreed between the Allison parents and the Ely parents and their two sons that Mr. and Mrs. Allison would go home with Mr. and Mrs. Ely in the Ely automobile, leaving the Allison car in Oxford for the use of appellant-Allison and appellee-Ely, and appellant's sister who was also attending Miami University, as a means of transportation home for the approaching Thanksgiving holiday.

Appellant-Allison testified, on conditional examination, in pertinent part, as follows:

'Q. State whether or not at that time it was decided as an economy measure that your parents would return with Mr. Ely's parents and leave the automobile for you and Charles Ely to use to save train expenses? A. Yes, that is right. They decided that would be a good move so that we could go back, my sister and Chuck and Harley and Kate. I might add at this time we had no understanding with either Kate or Harley, this was an after-thought after that weekend because they did live in the area of my home town.

'Q. It was the intention of you and Mr. Ely, was it, to share the expenses of the trip? A. Well, there was nothing said, nothing previously, no preplanning or figuring out amounts, no.

'Q. Would you say it was just assumed? A. Yes, it always has been, when you go with someone; it is not a pre-requisite.

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'Q. Who all was present, Mr. Allison, when your parents and Mr. Ely's parents made the decision to go back in the Ely automobile and leave the, your parent's automobile there for you fellows? A. Both our parents and Charles and I; all I remember the ones concerned at that time.

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'Q. Do you recall just what was said in that conversation? A. Well, we had, we were just sitting around, I can't recall if it was the same or some other afternoon, sometime before both the parents left, that it would be advantageous to leave the one car for transportation home, economically and time-wise, and as far as alleviating the fighting the connections and the disadvantages of making these connections, and time and distance involved, and making sure that my sister didn't have to fight the holiday traffic and congestion on the train with her luggage, and so on.

'Q. Then if I understand the situation there correctly, that by the Elys taking your mother and father back to Naperville and leaving the automobile of your parents at Oxford, it was agreed between the six of you, that is, your parents, Ely's parents, and you and Charles Ely, that there would be a saving in both time and money in doing it in that manner? A. Yes, and convenience.'

Appellant-Allison further testified on direct examination at the trial, in pertinent part, as follows:

'Q. While you were there what was said about the automobile situation? A. It was discussed by our fathers about the possibility of leaving a car so that we could have the opportunity to come home in a private car rather than the inconvenience of connections on the transportation available at that time.'

Appellant-Allison further testified on cross-examination at the trial, in pertinent part, as follows:

'Q. You did make a savings, you and your Sister, by getting to go home in the automobile rather than by train, bus, taxicab, and commuter's train, didn't you? A. I could answer that by saying that could be a part of it, that was not the main reason for having that car there and having to go home in it. There were other reasons. One was my Sister was not well, she had mononucleosis, I think that is a common college affliction in that you get very run down, I believe the white corpuscles take over the red ones, and she had been weak and restricted in her activities. My parents did not want her fighting this holiday traffic, especially on this rambling cattle train we had to take; that was one of the reasons; convenience was a reason; economy of time was another, we...