Cedziwoda v. Crane-Longley Funeral Chapel
| Decision Date | 27 July 1955 |
| Docket Number | CRANE-LONGLEY,No. A-5045,A-5045 |
| Citation | 155 Tex. 99,283 S.W.2d 217 |
| Parties | Oscar CEDZIWODA, Petitioner, v.FUNERAL CHAPEL, Respondent. |
| Court | Texas Supreme Court |
Harold B. Berman, Dallas, and Donald L. Gould, Houston, for petitioner.
Thompson, Knight, Wright & Simmons, Pinkney Grissom and David M. Kendall, Jr., Dallas, for respondent.
In this suit against the owner of an ambulance, plaintiff, who was a passenger in the ambulance, seeks damages for personal injuries suffered from a collision between defendant's ambulance and an automobile. The only question is whether or not the plaintiff is a 'guest' of the owner of the vehicle within the terms of Art. 6701b, V.A.C.S. The trial court granted judgment for defendant upon motion for instructed verdict and this has been affirmed by the Court of Civil Appeals. 273 S.W.2d 455.
A Miss Bernice Coble, the fiance e of the plaintiff, was examined by a doctor who determined that she should be taken immediately to a hospital in an ambulance. Plaintiff asked a nurse in the doctor's office to call an ambulance and an ambulance was sent by defendant to pick up the patient. Miss Coble asked the plaintiff to ride in the ambulance with her. Plaintiff told the driver and the attendant that he was going to ride in the ambulance with Miss Coble, and they said that it would be all right. Miss Coble was placed on an ambulance cot and rolled into the vehicle. The plaintiff got in and sat on a small seat near the patient. En route to the hospital the ambulance struck another vehicle.
Section 1 of Article 6710b, V.A.C.S., is as follows:
'No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.'
In order for this statute to govern the plaintiff must have been a guest of the owner of the motor vehicle 'without payment for such transportation'.
We hold that Article 6701b has no application to the case at bar. There is not a Texas decision directly in point. The two out-of-state cases which seem to be nearest in point treat the question as one of intent in making the contract of hire. Rushing v. Mulhearn Funeral Home, Inc., La.App., 1941, 200 So. 52; Vogreg v. Shepard Ambulance Service, Inc., 1954, 44 Wash.2d 528, 268 P.2d 642.
Here an ambulance was hired by Miss Bernice Coble and the plaintiff was invited by her. He was not invited by the defendant but was the guest of Miss Coble who was paying the owner of the vehicle for the transportation. Under the facts of this case, a sick person who hires an ambulance for transportation certainly has a right to have someone ride with her in the ambulance. The purpose of Article 6701b is to prevent fraudulent collusion between an insured and a guest. The situation at bar does not fall within the purpose of the statute.
The defendant relies upon such cases as Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, which hold that there must be a benefit to the operator of the vehicle which is shown to have been the motivating influence for furnishing the transportation. Here the hire of the vehicle was the motivating influence for furnishing the transportation, and Miss Coble, who had hired the vehicle, could, in the absence of some prohibition, take along plaintiff as her guest if she wanted to do so.
Accordingly the judgments of the Court of Civil Appeals and the trial court are both reversed and the case is remanded for another trial.
I agree that the judgments of the trial court and the Court of Civil Appeals should be reversed and the case remanded for another trial. The record shows that respondent based its charges upon the number of patients transported and that no additional charge was made for a friend or relative of the patient who rode in the ambulance, but this does not conclusively establish as a matter of law that petitioner was a guest within the meaning of Art. 6701b, Vernon's Ann.Tex.Civ.Stat. The testimony of Mr. Longley, the Vice-President of respondent corporation, that the $5 charged by his company for the trip was in payment for Miss Coble's transportation and that nothing was charged or paid for petitioner's passage, is merely his conclusion as to the legal effect of the transaction and is not controlling.
The question of whether petitioner was a passenger whose transportation was paid for or a guest must be determined from all the facts and circumstances of the case. The petitioner testified that he instructed a nurse to order an ambulance; that after some time two men dressed as ambulance drivers came to the clinic; that he told them he was going to the hospital with Miss Coble and they said 'all right'; that Miss Coble was placed in the ambulance and he climbed in the back with her; and that there was no discussion of his getting a free ride to the hospital. The parties did not discuss the amount to be paid respondent corporation for its services and did not agree that the entire charge would be considered as payment for the transportation of Miss Coble or that nothing would be charged or paid for petitioner's ride. It does not appear that Miss Coble or petitioner knew of respondent's method of computing its charges, or that the parties contracted with reference thereto.
The fact that respondent made a charge of $5 for the trip and would have charged the same amount if petitioner had not been a passenger in the ambulance does not, in my opinion, determine petitioner's status. Miss Coble and petitioner entered the ambulance and were transported thereby as part of a single business transaction with respondent, and all parties contemplated that respondent would be compensated for its part of the transaction. Respondent's method of computing its charges or the mental processes of its officers and agents, afford no basis for now separating the matter into two transactions, one for compensation and the other gratuitous. It is my opinion that under all of the facts of this case the payment by Miss Coble constituted payment for the transportation of both Miss Coble and the petitioner.
I cannot agree with the disposition of this case or with the reasons assigned therefor in the majority opinion.
Petitioner has sought a reversal of the judgments of the trial court and Court of Civil Appeals on three points of error as follows:
1. 'The Court of Civil Appeals erred in concluding that the Petitioner was clearly a gratuitous rider in Respondent's ambulance within contemplation of the Texas Guest Statute.'
2. 'The Court of Civil Appeals erred in concluding that the Respondent was not a public carrier and therefore within Sec. 2, Article 6701b, R.C.S., and exempt from the operation of the Texas Guest Statute.'
3. 'The Court of Civil Appeals erred in not sustaining the Petitioner's position that he was an invitee of the Respondent and not a mere licensee and entitled to the duty of care afforded an invitee.'
None of the foregoing points of error has been sustained and yet the judgments of the courts below have been reversed and the cause remanded. The reversal is predicated on the holding 'that Article 6701b has no application to the case at bar.' Whether that holding is correct depends entirely on the facts in the record. What are the facts on which the holding is based? As best I can analyze the opinion they seem to be summed up in these conclusions: 1. The ambulance 'was hired by Miss Bernice Coble'; 2. Plaintiff was invited by Miss Coble and was not invited by the defendant; 3. Plaintiff was the guest of Miss Coble; 4. Miss Coble 'was paying the owner of the vehicle for the transportation'; 5. Miss Coble, was hired the ambulance, had a right to have someone ride with her in the ambulance; 6. The facts of the case do not bring it within the purpose of the statute to prevent fraudulent collusion between an insured and a guest; 7. 'The hire of the vehicle was the motivating influence for furnishing the transportation, and Miss Coble, who hired the vehicle, could, in the absence of some prohibition, take along plaintiff as her guest if she wanted to.'
I submit that the foregoing conclusions of fact and law, when examined in the light of the record, cannot support the holding that Article 6701b has no application to the case.
The testimony is neither lengthy nor ambiguous. On the day in question Miss Coble, plaintiff's fiancee, went to Samuel's Clinic where it was determined that she should be sent to a hospital; Miss Coble telephoned the plaintiff and he and his brother went to the Clinic via street car; after a discussion with plaintiff Miss Coble decided she wanted to make the trip to the hospital in an ambulance, whereupon plaintiff requested a nurse to call an ambulance; when the ambulance arrived, in charge of a driver and an attendant, plaintiff asked them if he could go to the hospital with Miss Coble in the ambulance and they had no objection and said it would be all right; the driver and the attendant rode in the cab of the ambulance and Miss Coble, occupying a roll-away cot, and plaintiff, occupying one of two small chairs provided therein, rode in the body of the ambulance. The only testimony from which the nature of the arrangement between the parties for the use of the ambulance may be drawn is that of Mr. Longley, Vice-President of defendant corporation. He testified that the trip was not to be a gratuitous one and his testimony with respect to the charges made by defendant corporation is as follows:
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