Davis v. Landis Outboard Motor Co.

• Decision Date: 03 December 1965
• Docket Number: No. 35983,35983
• Citation: 138 N.W.2d 474,179 Neb. 391
• Parties: Letty Weaver DAVIS, Appellant, v. LANDIS OUTBOARD MOTOR CO. and Clement Landis and Lois M. Landis, Appellees.
• Court: Nebraska Supreme Court

Page 474

138 N.W.2d 474

179 Neb. 391

Letty Weaver DAVIS, Appellant, v. LANDIS OUTBOARD MOTOR CO. and Clement Landis and Lois M. Landis, Appellees.

No. 35983.

Supreme Court of Nebraska.

Dec. 3, 1965.

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 giving 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 question of whether a person riding in a motor vehicle is a guest, or engaged in a joint enterprise or other relationship, is generally one for determination in the individual case. It must be ascertained from facts establishing the identity of the persons advantaged by the carriage, the relationship between the parties, and the purposes to which the transportation is incident.

6. An essential element necessary to be proved to entitle a passenger in an automobile to recover damages from the host on the ground of negligence less than gross is that he is a passenger for hire.

7. 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.

8. The burden of proof means the duty resting on one party or the other to establish by a preponderance of the evidence an issue essential to recovery.

9. The fact that the car got out of the driver's control does not establish negligence and much less gross negligence, nor does it prove the proximate cause of the accident. Negligence is not presumed and cannot be inferred from the fact that there was an accident.

10. The line of demarcation between gross and ordinary negligence is not always clear. The cases however are clear in their declaration that negligence to be gross must be great or excessive; must be in a very high degree; not alone a momentary distraction of attention; and not alone the absence of slight care in the performance of a duty.

Spencer & Hoch, Nebraska City, John S. Redd, Sidney, Iowa, for appellant.

Moran & James, Nebraska City, Cline, Williams, Wright, Johnson, Oldfather & Thompson, Richard M. Tempero, Lincoln, for appellees.

Beard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ.

BROWER, J.

Plaintiff Letty Weaver Davis brought this action in the district court for Otoe County to recover damages for personal injuries suffered by her in an automobile accident. At the time she was riding in a jeep station wagon owned by defendant Landis Outboard Motor Company, under which name clement M. Landis, Sr., and Clement M. Landis, Jr., operated their business at Nebraska City. The defendant Lois M. Landis was the wife of Clement M. Landis, Jr., and was driving the vehicle at the time.

At the trial of the cause the defendants at the close of plaintiff's evidence made a motion for a directed verdict or in the alternative for a dismissal of the action. The trial court sustained the motion and dismissed the action. From an order overruling her motion for a new trial the plaintiff has appealed to this court.

The plaintiff maintains the trial court erred in finding as a matter of law in both instances, first, that plaintiff was a guest in the automobile in which she was riding, and second, the defendant driver was not guilty of gross negligence, because of which rulings the action was dismissed and a new trial denied.

The record in the case before us shows that on the day of the accident, July 29, 1962, the plaintiff, a resident of Imogene, Iowa, accompanied her friend, Glenn Fox, of Coin, Iowa, in his boat on the Missouri River. The boat was launched at Bartlett Landing on the Iowa side of the river about 15 miles north of Nebraska City. From there they proceeded up the river to Omaha, stopping at the River Club Marina at Fort Omaha where they had lunch. After spending 'a couple of hours' there, they proceeded back down the river. At a point somewhere south of the South Omaha Bridge, the motor got 'hot and stuck' and became inoperative. Fox paddled the boat downstream by hand for a ways, found a man near the river to whom he threw a rope, and docked the boat on the Iowa shore. Fox went with the man to a telephone. After first calling two marinas at Omaha, who he said were either busy or too expensive, he called Landis Outboard Motor Company and talked with defendant Clement M. Landis, Jr. Landis had worked on boats for Fox before and the latter had confidence in Landis' knowledge of the river and boat motors. Landis agreed to come up and assist. Landis arrived about 1 1/2 hours later. Lois M. Landis, his wife, and two daughters had accompanied him in the jeep station wagon to the place where the boat was laid up. The two men worked on the boat at least an hour before it was repaired. The river is perilous to navigate at night and requires an expert in nevigation after dark. It was dusk when the work was finished and Fox was afraid to make the trip. He engaged Landis to bring the boat back to the landing.

While the men were working on the motor, the plaintiff and the defendant Lois M. Landis remained on the bank with the children. When it was getting late Mrs. Landis went part way down the bank and met her husband. He handed her the plaintiff's bag. Returning she told the plaintiff, 'You will go with me.' She drove the jeep and on the way told plaintiff she was not going to Bartlett but directly to Nebraska City. Mr. Fox did not remember how plaintiff's carriage was arranged. Mrs. Landis, in answering interrogatories served by the plaintiff and introduced in evidence by her counsel, testified that Mr. Fox had called her husband to fix the engine on the boat. This was the reason for the trip. It being Sunday she took the children along for the outing. Although she did not normally go with him on boat repair calls, she did in this instance in order to drive back if her husband needed to drive the boat in the dark which Mr. Fox had requested. Her husband told her Mr. Fox had asked if plaintiff could ride back with her and Landis had told Fox she could.

The men went down the river in the boat to Bartlett Landing where it was loaded and taken to the boat shop of defendants Landis at Nebraska City. After going to the home of defendants Landis, they were informed of the accident with the jeep. Fox intended to compensate Landis for his service, but on being asked about it, Landis said, 'We have had enough trouble, just skip it.'

Meanwhile, the defendant Lois M. Landis was driving the jeep with her children and the plaintiff therein southward toward Nebraska City. About 3 miles north thereof they approached a left-hand curve, commonly called the 'beehive curve.' Plaintiff testified that part of the way around the curve the jeep 'began to kind of zag, and she (Mrs. Landis) threw up her hands and said, 'I can't make it!' That's the last I can remember until it stopped.' She also had said that immediately before the accident the vehicle made a sharp turn to the right. Mrs. Landis, in answer to interrogatories put in evidence by the plaintiff, stated that just before the accident her vehicle was in high gear, traveling about 50 miles per hour. She did not put on her brakes because the accident happened so fast she did not have time to consider doing so. There were no mechanical defects in the jeep. Photographs of the roadway were taken shortly after the accident and introduced in evidence. The newspaperman who took them testified that the road was paved at the curve, that the paving was normal and not wet, and that there was no fog or smoke.

We will first consider the question relating to the status of the plaintiff while riding in the defendants' car, to wit: Whether she was a guest or a passenger therein.

In Born v. Estate of Matzner, 159 Neb. 169, 65 N.W.2d 593, this court in its syllabi stated: '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...