Frisbee v. West

• Decision Date: 09 October 1963
• Docket Number: No. 31,31
• Citation: 260 N.C. 269,132 S.E.2d 609
• Parties: Clearman I. FRISBEE v. Floyd Harvey WEST.
• Court: North Carolina Supreme Court

Page 609

132 S.E.2d 609

260 N.C. 269

Clearman I. FRISBEE v. Floyd Harvey WEST.

No. 31

Supreme Court of North Carolina.

Oct. 9, 1963

J. Charles McDarris and Frank D. Ferguson, Jr., Waynesville, for plaintiff appellant.

Williams, Williams & Morris, Asheville, for defendant appellee.

BOBBITT, Justice.

The substantive rights and liabilities of the parties are to be determined in accordance with the law of Washington, the lex loci. Procedural matters are to be determined in accordance with the law of North Carolina, the lex fori. Nix v. English, 254 N.C. 414, 419, 119 S.E.2d 220, and cases cited; Knight v. Associated Transport, 255 N.C. 462, 464, 122 S.E.2d 64.

A Washington statute (Revised Code of Washington, Section 46.60.150) in pertinent part provides: 'Every operator of a vehicle on approaching public highway intersections shall look out for and give right of way to vehicles on his right, simultaneously approaching a given point within the intersection, and whether his vehicle first reaches and enters the intersection or not.'

The evidence most favorable to plaintiff tends to show defendant approached, reached and entered the intersection from Avila's right; that Cook Road, on which defendant was traveling, was the main highway; that Avila's car (proceeding north) was 500 feet south of the intersection when defendant's car (proceeding west) was 500 feet east of the intersection; that the speed of each car when 500 feet from the intersection was 35 miles per hour; that each car continued at this speed up to the moment of collision; and that, as the cars approached the intersection, each driver had an unobstructed view of the other's car.

There was plenary evidence as to the actionable negligence of Avila. Clearly, it was his statutory duty to 'give right of way' to the vehicle 'on his right,' to wit, defendant's car.

A close question is presented as to whether, under legal principles established by decisions of the Supreme Court of Washington, plaintiff's evidence was sufficient for submission to the jury as to defendant's actionable negligence. In this connection, see inter alia, Massengale v. Svangren, 41 Wash.2d 758, 252 P.2d 317; Bos v. Dufault, 42 Wash.2d 641, 257 P.2d 775; Bellantonio v. Warner, 47 Wash.2d 550, 288 P.2d 459; Robison v. Simard, 57 Wash.2d 850, 360 P.2d 153. However, for reasons stated below, a determination of this question is not necessary to decision on this appeal.

The host-guest statute of Washington (Revised Code of Washington, Section 46.08.080) provides: 'Liability of host for injury to guest in motor vehicle. No person transported by the owner or operator of a motor vehicle as an invited guest or licensee, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator, or the result of said owner's or operator's gross negligence or intoxication, and unless the proof of the cause of action is corroborated by competent evidence or testimony independent of, or in addition to, the testimony of the parties to the action: Provided, That this section shall not relieve any owner or operator of a motor vehicle from liability while it is being demonstrated to a prospective purchaser.'

There was no evidence the accident was intentional on the part of defendant or that it resulted from defendant's gross negligence or intoxication. Plaintiff's testimony was not corroborated by competent evidence or supported by independent or additional testimony.

Admittedly, when the collision occurred, both plaintiff and his brother (Doyle Frisbee) were passengers in the car owned and operated by defendant. (Note: Plaintiff testified he had never driven a car.) Nothing else appearing, the relationship subsisting between plaintiff and defendant was that of guest and host. It was incumbent upon plaintiff to allege and prove facts sufficient to show that the actual relationship subsisting between plaintiff and defendant when the collision occurred was not that of guest and host within the meaning of the statute. Moen v. Zurich General Accident & Liability Ins. Co., 3 Wash.2d 347, 101 P.2d 323; Fuller v. Tucker, 4 Wash.2d 426, 103 P.2d 1086; Hayes v. Brower, 39 Wash.2d 372, 235 P.2d 482, 25 A.L.R.2d 1431; Nielson v. Harkoff, 47 Wash.2d 205, 287 P.2d 95. The Washington decisions appear to be in accord with the general rule stated in Blashfield, Cyclopedia of Automobile Law and Practice, Permanent Edition, Volume 9C, § 6146, as follows: 'Automobile guest statutes, widely prevalent at the present time, preclude an injured guest from recovering against the host for ordinary negligence, and for this or other reasons, the occupant of a motor vehicle involved in an accident may seek to prove that he was not a guest, but on the contrary had some status other than that contemplated by the statutes, and in this situation the burden of proof is upon the plaintiff.' See also Blashfield, op. cit., § 6115.

Under Washington decisions, the host-guest statute does not apply (1) if the passenger and the owner-operator are joint adventurers or (2) if the passenger pays for the transportation.

'The essential elements of a joint adventure are, first, a contract, second, a common...