Elliott v. Camper
| Decision Date | 29 April 1937 |
| Citation | 194 A. 130,38 Del. 504 |
| Court | Delaware Superior Court |
| Parties | MARY JANE ELLIOTT v. ANNA L. CAMPER |
Superior Court for Kent County, Summons Case, No. 11, October Term, 1936.
In support of her declaration, the plaintiff's proof tended to show that on and prior to February 6, 1936, she was in the employ of Mrs. Camper, the defendant; that her employment was by a verbal agreement, but under the terms of that agreement she was, not only to do the cooking for Mrs. Camper, but was also, to act as her companion; that on the morning of the sixth of February, 1936, Mrs. Camper told her that she intended to drive to Rehoboth that day to see her daughter and wished the plaintiff to go with her for company; that she did not ask Mrs. Camper to take her to Rehoboth, and only consented to go because she thought that under the terms of her employment as a companion, as well as to do the cooking in the Camper home, it was her duty to do as she was directed, or, at least, requested by Mrs. Camper; that at the proper time she, therefore, got in Mrs. Camper's car and they started to Rehoboth; that Mrs. Camper lived near Bowers Beach; that there was a stop sign along the Bowers Beach road, a short distance east of its intersection with the main road leading from Dover to Rehoboth; that Mrs. Camper drove the car, and stopped it at that sign; that the plaintiff looked to the south but did not see any car approaching from that direction on the main road, but after Mrs. Camper had started to drive into that road the plaintiff saw a car which she afterwards learned was driven by one Ellis, rapidly approaching from the south and warned her of its approach that Mrs. Camper, nevertheless, drove her car into the main road and into the right side of the Ellis car; that the collision in question was caused, either wholly by the negligence of Mrs. Camper, the defendant, or by the concurring negligence of Mrs. Camper and the driver of the Ellis car, and that the plaintiff was seriously injured thereby.
At the close of the plaintiff's case, the defendant moved for a non-suit. This motion was based on Section 5713 of the Revised Code of 1935, and on the contention that the plaintiff was a mere non-paying guest in the defendant's car, and, as there was no evidence that her injuries were caused by any intentional, or wilful, or wanton acts of the defendant, the plaintiff could not recover.
The Court (HARRINGTON, J.) refused the defendant's motion because there was evidence in the record that tended to show that the plaintiff was in defendant's car in the course of her employment, as a companion, and not as a mere guest.
The defendant's evidence tended to show that the plaintiff was merely employed by her as a cook and in no sense as a companion; that when she started to Rehoboth, the plaintiff asked her to take her as far as Milford to do some shopping; that when she was injured the plaintiff was, therefore, riding in the defendant's car as a mere guest and not pursuant to either the direction or even the request of the defendant, and that by reason of the statute above referred to (Rev. Code 1935, § 5713) the plaintiff could not recover. The defendant, also, denied that she was guilty of any negligence, whatever, when the plaintiff was injured.
At the close of the defendant's testimony, the defendant raised the same question, on which her motion for a non-suit was based, and because of the provisions of Section 5713 of the Revised Code of 1935 requested the Court to direct the jury to find a verdict in her favor. This motion was, also, refused by the Court on the same ground on which the refusal to grant a non-suit was based.
Caleb R. Layton, 3d, for plaintiff.
Charles L. Terry, Jr., and Max Terry (of Hughes, Terry and Terry) for defendant.
OPINION
, in charging the jury, among other things, said:
The basis of this action is negilgence, and in order for the plaintiff to recover she must show by the preponderance of the evidence that the defendant negligently violated some duty which she owed to the plaintiff, and that such negligence was the real or proximate cause of her injuries. You must, also, bear in mind that the negligent act or acts relied on by the plaintiff to prove her case must be the very act or acts alleged in her declaration.
Negligence has often been defined by this Court to be the lack of ordinary care under the circumstances; that is, the failure to exercise such care and caution as a reasonably careful and prudent man would have exercised under similar circumstances.
Negligence on the part of the defendant is never presumed from the mere fact that a collision between two automobiles took place, and that the plaintiff was injured thereby, but must always be proved, and, as I have already indicated, the burden of showing that the collision in question and the alleged damages resulting therefrom were caused by the negligence of the defendant is on the plaintiff. * * *
But where each of two or more persons owe to a third person a separate duty, which each wrongfully neglects to perform, then, though the duties were diverse and disconnected, and the negligence of each was without concert, if such several acts concurred and united together in causing injury to a third person, that person can sue and recover from either or both of the wrongdoers if there were no negligence on her part contributing to her injuries. Matthews v. Delaware, L. & W. Railroad, 56 N.J.L. 34, 27 A. 919, 22 L. R. A. 261; Sullivan v. Krivitsky, 100 Conn. 508, 123 A. 847; Banker v. Wells (Mo. App.), 274 S.W. 939; 43 C. J. 922-925; see, also, Island Express Co. v. Frederick, 5 W. W. Harr. (35 Del.) 569, 171 A. 181; Stucker v. American Stores Co., 5 W. W. Harr. (35 Del.) 594, 171 A. 230. In other words, in order for a negligent act to be considered the legal or proximate cause of the damages complained of, it is not absolutely essential that such act should be the sole and exclusive cause of the plaintiff's injuries; but, though there was no contributory negligence on her part, in order for the plaintiff to recover it must clearly appear from the evidence that the negligent act relied on was an efficient cause of her injuries, if any such injuries were suffered by her. [1] 1 Street on the Foundation of Legal Liabilities 122; Island Express Co. v. Frederick, 5 W. W. Harr. (35 Del.) 569, 171 A. 181; 45 C. J. 922.
The plaintiff was unquestionably riding in a car operated by the defendant. An Act of the Legislature of this State (38 Del. Laws, c. 26) entitled, "An Act for the relief of owners and operators of motor vehicles from liability for injuries, death and loss suffered by guests except in certain cases" provides: "No person transported 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 injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his wilful or wanton disregard of the...
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Truitt v. Gaines
...collected on Guest Statutes in 59 A.L.R.2d 336. 67 Engle v. Poland, 8 Terry 365, 47 Del. 365, 91 A.2d 326, 328; Elliott v. Camper, 8 W.W.Harr. 504, 38 Del. 504, 194 A. 130, 133; Wilkes v. Melice, 9 Terry 206, 48 Del. 206, 100 A.2d 742, 68 Affiliated Enterprises, Inc. v. Waller, 1 Terry 28, ......
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Truitt v. Gaines
...some benefit to the defendant driver." Wilkes v. Melice, 9 Terry 206, 100 A.2d 742, 744 (Super.Ct.Del.1953). Elliot v. Camper, 8 W.W.Harr. 504, 194 A. 130, 133 (Super. Ct.Del.1937). We noted earlier that Delaware also firmly recognizes that mutual benefit to the driver and the passenger is ......
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...another merely for his own business or pleasure without making any return or conferring any benefit upon the driver. Elliott v. Camper, 1937, 8 W.W.Harr. 504, 194 A. 130. Benefit, if any, to the driver thus becomes a key factor in determining the status of the passenger. Obviously the statu......
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