Carboneau v. Peterson

• Citation: 95 P.2d 1043,1 Wn.2d 347
• Decision Date: 17 November 1939
• Docket Number: 27473.
• Parties: CARBONEAU v. PETERSON.
• Court: United States State Supreme Court of Washington

95 P.2d 1043

1 Wn.2d 347

CARBONEAU v. PETERSON.

No. 27473.

Supreme Court of Washington, En Banc.

November 17, 1939

Action by Kenneth Carboneau against Winfield Peterson to recover damages for injuries sustained while riding in an automobile owned and driven by defendant. From a judgment of dismissal plaintiff appeals.

Affirmed.

GERAGHTY J., BLAKE, C.J., and MAIN and MILLARD, JJ., dissenting.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, judge.

Clarence J. Coleman, of Everett, and Vanderveer & Bassett, of Seattle for appellant.

Ballinger, Hutson & Boldt, of Seattle, for respondent.

STEINERT Justice.

Plaintiff brought an action to recover damages for personal injuries sustained by him while riding in an automobile owned and driven by defendant. The action was based on defendant's alleged negligence in operating the car. At the conclusion of plaintiff's case, in a trial Before a jury, the court sustained defendant's challenge to the sufficiency of the evidence and subsequently entered judgment of dismissal. Plaintiff has appealed.

The determinative question in the case is whether the evidence was sufficient, had it been submitted to the jury, to warrant a finding that the relation between the parties was that of joint adventure, as appellant contends, or whether, on the contrary, the evidence established, as a matter of law, that the relation was one of host and guest, as contended by respondent and as found by the court. Appellant concedes that, if he was respondent's guest, his cause of action must fail because of the statutory bar found in chapter 18, Laws of 1933, p. 145, re-enacted as chapter 189, Laws of 1937, p. 911, § 121 (Rem.Rev.Stat. § 6360-121), commonly referred to as the 'host and guest' statute.

At the time of the events which we are about to relate, appellant, Kenneth Carboneau, respondent, Winfield Peterson, and one Roy Wick, three young men living in Everett, had been intimate friends for several years. On March 27, 1937, respondent purchased a second-hand Ford roadster, and, in the afternoon of that day, drove it to the home of appellant to show it to his two friends. Respondent there expressed an intention to drive the car upon a trial excursion that night, and the three young men then informally agreed that they would go to Seattle and attend a moving-picture show. It appears to have been tacitly understood by them that they would share equally the cost of the gasoline necessary for the trip; this was in accordance with their habit on other occasions when they had used either appellant's car or Wick's car.

On leaving Everett at about 8:00 P. M., they each contributed thirty-five cents to the purchase of five gallons of gasoline. They then proceeded to Seattle where they attended a show, to which each paid his own admission. After the show, they drove around Seattle for about an hour and then had lunch, each paying for his own meal. They then started home and had almost reached the city limits of Everett when the car, being driven by respondent, suddenly ran off the road near a curve and struck a pole. Appellant sustained the injuries for which this action was brought.

Since the question Before us relates to the sufficiency of the evidence, it is proper and necessary to refer to the testimony which appellant offered and on which he relies for a recovery.

Appellant testified, on direct examination, as follows:

'Q. Was anything said by Peterson about the expenses of the trip? A. I believe he stated that since he had purchased the car he wouldn't have very much money that evening and we'd all put in on the gas.

'Q. Where was that conversation had? A. I believe it was after we left Wick's house, or right at Wick's house that evening.

'Q. Did you agree to share the expenses? A. Yes, sir, I did.

'Q. How much did you contribute? A. It was about thirty-five cents.

'Q. You bought five gallons of gas and each of you chipped in? A. Yes, sir.'

On cross-examination, he testified:

'Q. Win was proposing to take his car and take a drive somewhere, to try it out? A. Yes, sir, he was going to that night.

'Q. And you and Roy were going to go along for the ride, weren't you? A. Well, it was purposely for a pleasure trip.

'Q. I say the purpose of the ride was for Win to try his new car out and for you fellows to go along for the ride, isn't that true? A. Yes, sir.

'Q. And that is what you had in mind and what the purpose of this trip to Seattle was? A. Yes, sir.

'Q. The going to the movie, that was sort of an incidental matter? A. Well, we had thought Before we left that we'd go down and see a show.

'Q. Yes; but I say that was sort of incidental, or secondary, to the idea that he wanted to take his car and try it out and you fellows being his pals, would go along for the ride, is that right? A. That's right.

'Q. There was no business to be transacted by you at any time? A. No.

'Q. Or any work, or anything of that kind at all--just purely to take an automobile ride? A. Yes, sir.

'Q. There was nothing said to you, nor anything said by you to Win, prior to the time that you got to the gas station about the matter of helping out on the gas, was there? A. I believe there was. We had had, it seems to me--Well, it seems to me there was a discussion of that Before that.

'Q. That is what I want to ask you. Now, do you say that Peterson, Win Peterson, said anything to you, or that you said anything to Peterson, concerning this matter of your chipping in thirty or thirty-five cents for the gas? A. Well, he state--I wouldn't swear to this, but he----

'Q. (Interposing) No, you cannot say anything you won't swear to. This is a court of law, Mr. Carboneau, and that is what we have got to confine ourselves to. What I want to know is, do you say that Win said anything to you, or that you said anything to Win at any time prior to the time you got to the gas station? A. I know there was some understanding between us Before we left that we'd all chip in on the gas.

'Q. But my question is, are you testifying, or do you propose to testify, that Win said anything to you or you said anything to Win Before you got to the gas station about the fact that you were going to chip in thirty or thirty-five cents on the gas, or any other conversation about that matter between you two? A. I think Peterson said that he wouldn't have very much money since he had bought the car that day, and he intended we'd all put in on the gas.

'Q. You think that was said? A. I think it was.

'Q. When was that said? At the gas station? A. No, Before we left; when we was up at Wick's house.

'Q. But the plan for him to take his car and take you fellows along had been decided on Before that? A. Yes, sir.

'Q. He had asked you to go, had he? A. Yes, sir.'

Roy Wick testified on direct examination:

'Q. I wish you would tell the jury the circumstances that led up to your going to Seattie. What was said, and what arrangement, if any, was made Before you left? A. Well, the three of us decided to go to Seattle on a Saturday night, and the three of us were to share the expenses, pay for the gas.

'Q. Was that actually discussed Before you started? A. Well, we understood it Before we left Everett. We all paid for the gas.

'Q. You talked about that, did you? A. Yes, we understood it.

'Q. Was any gas purchased? A. Yes.

'Q. How much, do you recall? A. About five gallons, I believe.

'Q. Did you contribute? A. Yes.

'Q. Did Kennie Carboneau contribute? A. Yes, sir.

'Q. What time did you leave Everett for Seattle? A. We left my house about eight o'clock.

'Q. What was the purpose of the trip--just a pleasure trip? A. Just a pleasure trip.'

On cross-examination, he testified:

'Q. You say that you understood that you were going to chip in something on the gas, is that right? A. Yes.

'Q. But there was no actual discussion, nothing said by Win Peterson asking you, or saying that you should do that, or you saying you would, or anything of that kind until you actually did it, was there? A. Well, I believe we had an understanding that we would do it Before we left.

'Q. Let's get that 'understanding' business straightened out. That is what I am asking you. You don't claim, do you, Mr. Wick, that Win Peterson said anything specifically about that at all, do you? A. Well, I knew we were going to put in gas Before we left Everett.

'The Court: Answer the question. You can answer that by 'yes' or 'no'. A. Yes, sir.

'Q. You claim that he said something about it? A. Yes, sir.

'Q. When did he say it? At the gas station? A. Well, Before we left my house he said we were going to go to the gas station Before we went to Seattle.

'The Court: He said that?

'The Witness: Yes, sir, because there wasn't much gas in the car.

'The Court: Just a minute, did he say that? You have stated here now that 'we were going to go to the gas station Before we went to Seattle because there was not much gas'. Now, did Mr. Peterson say that to you or that in substance?

'The Witness: Yes, sir.

'Q. He said that you fellows were each going to put thirty cents into the trip, is that right? A. He didn't specify no amount.

'Q. Well, that is what you did do, wasn't it? A. Yes.

'Q. When you got to the gas station you got five gallons of gas and you and Kennie put in thirty cents, or thirty-five cents? A. About that, yes.

'Q. Is that right? A. Yes, sir.

'Q. That is all of the discussion there was, just simply that he was going to put gas in, but there was no discussion of how much you were going to pay, or anything of that kind? A. No.

'Q. And the only thing that he actually said was that Before you left he was going to stop at the gas station because he was low on gas, is that right? A. Yes.

'Q. Nothing else that he said? A. Not that I...