Froman v. J. R. Kelley Stave & Heading Co.

• Decision Date: 10 October 1938
• Docket Number: 4-5159
• Parties: FROMAN v. J. R. KELLEY STAVE & HEADING COMPANY
• Court: Arkansas Supreme Court

120 S.W.2d 164

196 Ark. 808

FROMAN v. J. R. KELLEY STAVE & HEADING COMPANY

4-5159

Supreme Court of Arkansas

October 10, 1938

Appeal from Arkansas Circuit Court, Southern District; W. J Waggoner, Judge; affirmed.

Judgment affirmed.

Botts & Botts, for appellants.

E. W Moorhead, for appellee.

OPINION

SMITH, J.

Mr. and Mrs. Froman sued appellee for damages, and from a verdict and judgment against them is this appeal. Mr. Froman sued as next friend of his daughter, Peggy Louise Froman, and Mrs. Froman sued in her own right to recover damages to compensate injuries which she had personally received.

The most important issues in the case are substantially reflected in an instruction given at the request of appellee reading as follows: "You are instructed that the burden of proof is upon the plaintiffs to establish by a greater weight of the evidence that their injuries or damages, if any, were caused by the willful and wanton operation of the automobile in disregard of the rights of the others, and that Otis Futrell was at the time an employee, or under the instructions of Hudkins, an employee of the defendant, using the automobile in line of duty for the defendant, and unless the plaintiffs have discharged that burden of proof they are not entitled to recover, and your verdict should be for the defendant."

Hudkins was appellee's manager, and in pursuance of his employment directed Futrell to drive an automobile, owned by appellee, from Hunter to DeWitt. No question is made as to the sufficiency of the testimony to establish these two facts. Four persons accompanied Hudkins and Futrell on this trip. Three of these--Mrs. Stronger, her grandson, Lester Warner, and Mrs. Froman--rode on the rear seat of the car. Hudkins and Futrell rode in the front seat of the car, with Peggy between them.

During the progress of the trial appellants offered testimony tending to show that they were passengers, and not guests. This testimony was admitted over the objection that the complaint contained no such allegation. The court admitted this testimony, but was evidently of the opinion that it was not sufficient to establish the relation of passenger and carrier, and refused to give instructions which, if given, would have submitted that issue to the jury. Exceptions were saved to the refusal of the court to submit this question to the jury, and this assignment of error will first be disposed of.

Mrs. Stronger testified that she did Hudkins' laundry work, and took care of his police dog, and cleaned his car. It was not shown whether the car she cleaned was the car in which she embarked on the trip from Hunter to DeWitt, and it does not appear how the personal services rendered Hudkins inured to the benefit of appellee, his employer, so as to constitute the relationship of passenger and carrier. But, even so, Mrs. Stronger is not a party to this suit.

Mrs. Froman desired to visit her husband in DeWitt, where he was employed by appellee, and she had spoken to Hudkins on several occasions about taking her to DeWitt on some one of the numerous trips which Hudkins made from Hunter to DeWitt. Hudkins invited Mrs. Froman to go with him on the trip which resulted in her injury, and Peggy went along to see her father. As tending to establish her relation as a passenger Mrs. Froman testified as follows: "We talked about buying a Coca-Cola, and then he asked me what I was going to pay on the gasoline, and I told him to wait until I got to DeWitt I would get the money from my husband, and pay him, that I didn't have any money with me."

Hudkins denied that this conversation occurred, but admitted that, as a matter of pleasantry, he spoke to Mrs. Froman about buying the drinks. She did not buy the drinks. It is evident that if there was any inquiry whether Mrs. Froman "was going to pay on the gasoline" it was made after the trip had begun, and there was no charge made or promise to pay before the trip began. Mrs. Froman's testimony is indefinite and undetermined as to what sum she "was going to pay on the gasoline." No demand for payment was made, and nothing was paid, and nothing more was said on that subject. Mrs. Froman testified that she thought no fare was due, as she and her daughter were both seriously injured before the completion of the trip.

We think the court did not err in treating this conversation as insufficient to create the relation of passenger and carrier, as it is evident that Hudkins did not require that Mrs. Froman pay any part of the cost of the gasoline as a condition upon which she would be taken to DeWitt. She alleged in her complaint and testified at the trial that Hudkins invited her to go with him, and assured her that he had a safe driver, and the invitation had been accepted and the trip begun before this casual conversation was had. It is certain that neither Mrs. Froman nor her daughter, Peggy, were traveling on any mission in which appellee was concerned. They were on the way to see their husband and father, a trip which could be of no advantage or benefit to appellee.

The Supreme Court of Michigan has gone further than we are required to go in holding that appellants were not passengers. That state has a statute which requires that "gross negligence or willful and wanton misconduct" be shown to authorize a guest to recover damages from his host.

In the case of Morgan v. Tourangeau, 259 Mich. 598, 244 N.W. 173, the plaintiff had bought and paid for a tank full of gasoline, but the Supreme Court of Michigan held that the plaintiff was a gratuitous passenger notwithstanding that fact. In that case the owner and driver of the car attempted to drive over a railroad crossing ahead of a train, and a collision occurred in which the occupants of the car were severely injured. In holding that this testimony did not make a case under the statute quoted the court said: "Better judgment might have dictated to defendant that she should have endeavored to stop her car before it reached the crossing, but her failure to so determine, and her act in proceeding in the belief that it was the best thing to do under the circumstances, cannot be said to be an act of gross negligence or willful and wanton misconduct on her part."

Another case which goes further than we are required to go in holding that appellants were not passengers is that of Askowith v. Massell, 260 Mass. 202, 156 N.E. 875. In that case the Supreme Judicial Court of Massachusetts said: "The plaintiff asked the judge to rule that if he paid a proportionate share of the operating expenses 'he was not a gratuitous guest of the defendant'; that if the plaintiff was paying a share of the operating expenses 'as compensation for his transportation therein, that circumstance is to be considered in determining the defendant's duty of care toward the plaintiff'; that if the plaintiff was paying a share of the operating expenses 'as compensation for his transportation therein, he was a passenger for hire.' The requests were denied rightly. There was no evidence that the plaintiff was a 'gratuitous guest,' nor was he a passenger for hire. The automobile...