Born v. Matzner's Estate

• Decision Date: 23 July 1954
• Docket Number: No. 33567,33567
• Citation: 65 N.W.2d 593,159 Neb. 169
• Parties: BORN v. MATZNER'S ESTATE.
• Court: Nebraska Supreme Court

Page 593

65 N.W.2d 593

159 Neb. 169

BORN v. MATZNER'S ESTATE.

No. 33567.

Supreme Court of Nebraska.

July 23, 1954.

Syllabus by the Court.

1. A guest by the terms of section 39-740, R.R.S.1943, is a person who accepts a ride in a motor vehicle without compensation therefor.

2. The words of the statute 'without giving compensation therefor' do not limit compensation to persons paying for transportation in cash or its equivalent and do not require that the compensation be exclusively from the passenger to the driver.

3. A person riding in a motor vehicle is a guest if his carriage confers only a benefit upon himself and no benefit upon the owner or operator except such as is incidental to hospitality, social relations, companionship, or the like, as a mere gratuity. However, if his carriage contributes such tangible and substantial benefits as to promote the mutual benefits of both the passenger and owner or operator, or is primarily for the attainment of some tangible and substantial objective or business purpose of the owner or operator, he is not a guest.

4. A benefit to the owner or operator of a motor vehicle sufficient to remove an occupant riding in it from the provisions of the guest statute must be a tangible and substantial one and a motivating influence for his furnishing the transportation.

5. The owner of an automobile, pastor of a church, and the other occupants thereof- , members of an organization authorized by the church known as the Women's Guild, made a trip in the automobile of the owner to attend a regional meeting of the guild without payment of money or its equivalent to the owner. He was not obligated to transport the occupants or attend the meeting and had no part or voice in its proceedings but the occupants had a duty to attend it. The relationship between the occupants and the owner of the car was one of a social nature and any benefit derived by the owner was not compensation within the guest statute.

6. Appellant and the owner of an automobile traveled to a regional meeting of the Women's Guild in the motor vehicle of the owner under the circumstances stated in the opinion. The owner did not furnish the transportation in consideration of anything to be performed or furnished by appellant to him. Any mutual benefit resulting or benefit derived from the trip by the owner was not of such a nature as to constitute appellant a passenger rather than a guest within the meaning of the guest statute.

7. The transportation furnished by the owner of a motor vehicle under the circumstances stated in the opinion did not promote or benefit any mutual interest or business of the owner and appellant because the presence of the owner at the meeting was not necessary for or contributory to appellant deriving full benefit from the meeting.

8. The violation of traffic regulations concerning stop signs, speed, the manner of operating a motor vehicle on the highway, and the like is not negligence as a matter of law of any kind or degree, but it is a fact to be considered with the other evidence in the case in deciding an issue of negligence.

9. A traveler may ordinarily occupy and use any part of a public highway he desires if it is not needed by another whose right thereto is superior to that of the traveler.

10. A guest to recover damages from his host for injury received by the guest while riding in a motor vehicle operated by the host must prove by the greater weight of the evidence in the case the gross negligence of the host relied upon by the guest and that it was the proximate cause of the accident and injury.

11. Gross negligence means great and excessive negligence; that is, negligence in a very high degree. It indicates the absence of slight care in the performance of a duty.

Hotz & Hotz, Omaha, J. Howard Davis, Plattsmouth, Robert M. Kane, Omaha, for appellant.

Begley & Peck, Plattsmouth, Joseph H. McGroarty, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This litigation originated with the filing by appellant of a claim in proceedings for the administration of the estate of Adolph Matzner, deceased, pending in the county court of Cass County. The basis of it was damages appellant claimed she sustained because of injuries inflicted upon her by gross negligence of the deceased in the operation of a motor vehicle owned and driven by him in which appellant was a passenger. The administrator of the estate contested the validity of it. An appeal was taken from the disposition made of the claim in that court to the district court. The motion of the representative of the estate of the deceased for an instructed verdict in favor of the estate when appellant had completed the proof made as her case-in-chief was sustained by the district court. The claim was disallowed and the proceedings dismissed. The motion of appellant for a new trial was denied. This appeal attacks the validity of the judgment and the denial of the application for a new trial.

The accident in which appellant was injured occurred October 8, 1952. She was an occupant of a Buick automobile owned and operated by Adolph Matzner, deceased, hereafter referred to as the deceased. It is necessary to the decision of the case to determine whether appellant had at the time of the accident the status of guest by invitation and not for hire or whether she was at that time being transported as a passenger 'giving compensation therefor'. Section 39-740, R.R.S.1943. The proof from which this must be concluded is without conflict. It was produced by appellant and she is entitled to have it and any deducible inferences therefrom considered most favorably to her. Paxton v. Nichols, 157 Neb. 152, 59 N.W.2d 184.

The Women's Guild of St. Paul's Evangelical and Reformed Church of Plattsmouth is an organization authorized by the church. It is known as a local women's guild and is designated herein as the guild. The general or synodical women's guild has its headquarters at Dayton, Ohio. Membership in the church qualifies any woman for membership in the guild, but membership in the church is not required to make a woman eligible to become a member of the guild without regard to her religious faith. It elects its officers, collects monthly dues from its members, selects its projects, and controls and disposes of funds received or earned by or contributed to it. It has substantial self-determination of its affairs and activities. In any event it is definitely distinguishable from the church. The objectives of the guild are not limited to the advancement of the religious endeavors of the church. It participates in local, civic, and community projects. Its endeavors are religious, charitable, and civic. They concern substantially all phases of these. The beneficiaries of these are not only the church or its congregation but persons everywhere regardless of belief or race. The social service project of the guild is charitable in character as local, national, and world-wide in its intended scope. Appellant, a member of the church and the guild, was interested in this area of the regional meeting, hereafter referred to, and it was for an exploration of this field of guild work that was the occasion of her transportation by the deceased at the time of the accident.

The deceased had been pastor of the St. Paul's Evangelical and Reformed Church of Plattsmouth for about 2 years before the events important to this case. He had during that time on various occasions used his automobile to transport women of his congregation to church meetings, church picnics, meetings of the guild, and to other activities. He received no pay for this.

The president of the guild of the Plattsmouth church was given notice of a regional meeting at Goehner on October 8, 1952. Its purpose was to familiarize department heads of the guild with activities sponsored by the general organization. Social service was to be discussed and studied at the regional meeting. The guild project in this department concerned the packaging and forwarding of clothes, food, and necessaries to less fortunate persons in all parts of the world. The head of each of the departments of the guild was expected to attend the regional meeting. They were unable to do so. The president of the Plattsmouth guild secured four members to represent it. Appellant was authorized to act as the head of the social service department. Each of the other three women secured was asked to attend on behalf of a separate department. The deceased volunteered to use his automobile and take the four ladies referred to above to the regional meeting. The final arrangement was made with him by the president of the guild. She told the four women of this and when and from where in Plattsmouth they were to commence the trip. The women approved and accepted the arrangements for their conveyance to and from the meeting as made by the president. The deceased and the four women left Plattsmouth about 7:30 a. m. and proceeded to near the east part of Lincoln before the accident took place which is involved in this litigation. The deceased was not to be paid any amount for the trip. His offer to take the women to and return them from the meeting was unconditional.

The deceased was not a member of the guild and was not obligated to attend the meeting at Goehner or to furnish conveyance for anyone incidental to the meeting. He did attend some regional meetings of the guild. He did not attend all of them nor did the pastors of other churches of this denomination within the area of the region. The regional meeting was for the area of western Iowa and eastern Nebraska. There were 15 or more churches therein but not to exceed 6 pastors from the region attended. One was there to perform a special assignment. It is suggested, but not definitely shown, that some of the other pastors were there to deliver lectures to members of the guild. The...