George v. Stanfield

• Citation: 33 F. Supp. 486
• Decision Date: 02 May 1940
• Docket Number: No. 2060.,2060.
• Parties: GEORGE v. STANFIELD et al.
• Court: U.S. District Court — District of Idaho

33 F. Supp. 486

GEORGE v. STANFIELD et al.

No. 2060.

District Court, D. Idaho, S. D.

May 2, 1940.

D. L. Carter, of Weiser, Idaho, and J. M. Lampert, of Boise, Idaho, for plaintiff.

J. F. Martin, of Boise, Idaho, for defendant.

CAVANAH, District Judge.

The action is brought to recover the sum of $25,000 for damages alleged to have been caused by the negligence of the defendant when in operating his automobile upon the public highway in the State of Oregon, in a negligent and reckless manner.

At the pretrial the issues were simplified to the one issue of whether or not the defendant was negligent in the operation of his automobile at the time of the accident, and if so, the extent of the alleged injuries. The defendant Stanfield Feeder Company was, upon agreement of the parties, dismissed from the case.

The complaint alleges in substance that on or about the 2nd day of January, 1938, the defendant Stanfield came to the residence of the plaintiff in Ontario, Oregon, and asked him to go with him to a place near the Owyhee school house, and south of Nyssa, Oregon, for the purpose of seeing a man, upon the exclusive business of the defendants, and to go with him, so that the plaintiff might show the defendant how to find the way to the place; that they went to the place which is known as George Mentozani's place, and in due time began the return trip toward Ontario, Oregon, in a Ford coupe, driven by the defendant. That when they reached a point four or five miles southwest of Nyssa, on the return trip, where the highway turns or bends sharply to the right, the defendant was driving the automobile at an excessive and exceedingly high rate of speed and in a negligent, careless and wanton manner, and without due regard for the safety of the plaintiff, and without having his automobile in proper condition for safe driving at the ordinary rates of speed, and because of such negligent and careless manner the defendant failed to make the turn in the highway but instead turned the automobile, negligently, recklessly and carelessly into the borrow pit on the left side of the highway, overturning the automobile on its left side and throwing the plaintiff violently against an object in the automobile, such as the steering wheel or some other object in the automobile which rendered the plaintiff unconscious, and that he has suffered a hernia and received cuts, contusions and injuries over his left eye, and nose and injuries to his left ribs and lungs, and further alleges that the defendant did not have his automobile in proper condition for safe driving and his brakes were not in safe condition, all of which allegations are denied by the defendant.

The evidence relating to that issue discloses that on January 2, 1938, the defendant Stanfield, who was then engaged in the stock business, went to the plaintiff, in Ontario, Oregon, who shortly before was one of his employees, and requested him to go with him in his automobile and assist him in locating the place where the Weiser Sheep Company was feeding and where a man they called John, was at, as he did not know. The plaintiff consented to do so and they both drove to the ranch some 22 miles from Ontario and when arriving there the defendant was unable to find the man he was looking for and they started back to Ontario in the defendant's automobile. After traveling about five or six miles, the automobile of the defendant, when going around a sharp curve in the highway turned over on its left side into the ditch alongside of the highway, thereby causing injuries to the person of the plaintiff. The road was slippery as it was icy and had frost on it.

When on their way from Ontario to the ranch the defendant drove the automobile from 50 to 60 miles per hour and when returning, before the accident, he drove at a little faster rate. While on the highway, both going from and returning to Ontario, the plaintiff protested at times to the defendant about driving too fast, and at times he would slow up the speed, and again reach the speed of from 50 to 60 miles per hour. The plaintiff informed the defendant that the highway was pretty slippery. The brakes of the automobile were known to the defendant, before the accident, to be inadequate, and not in proper condition, as he had been informed of that fact at a garage the day before.

Under these facts argument is made by the defendant that as the plaintiff did not request the defendant to stop the automobile and permit him to alight, but continued riding in it after he had warned the defendant of the danger, he cannot recover under the guest statutes of both Oregon and Idaho.

The question of the operation of the guest statutes of Idaho and Oregon upon the right of recovery lies at the threshold of the case. We must apply the Oregon guest statute, as it governs the rights of the plaintiff and the liability of the defendant, being the state in which the accident occurred, under the recognized rule that the Federal Courts will take judicial notice of the statutes and decisions of the highest court of the state where the accident occurred. Junction Railroad Company v. Bank of Ashland, 79 U.S. 226, 12 Wall. 226, 20 L.Ed. 385; Fourth National Bank of New York v. Francklyn, 120 U.S. 747, 7 S.Ct. 757, 30 L.Ed. 825; Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293; Steele v. Commercial Milling Co., 6 Cir., 50 F.2d 1037, 84 A.L.R. 278. This principle was recently applied by the Supreme Court in the case of Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 822, 82 L.Ed. 1188, 114 A.L.R. 1487, where the plaintiff brought an action in the Federal Court for Southern New York, for damages occurring in the State of Pennsylvania and invoking jurisdiction on the ground of diversity of citizenship. The liability of the Railroad Company for an injury caused by the negligent operation of its train in the State of Pennsylvania was held to be governed by the laws of that state as the Court said when in applying the Pennsylvania law that: "Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern."

Applying then, the facts here to the guest statute of the State of Oregon, Code Or.1930, § 55-1209, which 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 said owner or operator or caused by his gross negligence or intoxication or his reckless disregard of the rights of others." depends upon whether the person transported by the owner or operator of the motor vehicle was a guest without payment for such transportation and the accident was not intentional on the part of the owner or operator or caused by his gross negligence or intoxication or his reckless disregard of the rights of others.

The Supreme Court of that State has interpreted that statute in the case of Albrecht v. Safeway Stores, 159 Or. 331, 80 P.2d 62, 65, and gave it the following construction:

"In the ordinary acceptation of the term, a `guest', according to Webster's New International Dictionary, 2d Ed., is `a person entertained in one's house or at one's table; a visitor entertained without pay; hence, a person to whom the hospitality of a home, club, etc. is extended.' As used in the statute, a `guest' is one who accepts a ride in any motor vehicle without payment therefor, and for his own pleasure or business. He is the recipient of the hospitality of the owner or driver. Gledhill v. Connecticut Co., 121 Conn. 102, 183 A. 379. `Payment', as used in the statute, does not necessarily mean a money compensation. `Payment' is not to be considered in its restricted legal sense as the discharge in money of a sum due or the performance of a pecuniary obligation. Haney v. Takakura, 2 Cal.App.2d 1, 37 P.2d 170; Cardinal v. Reinecke, 280 Mich. 15, 273 N.W. 330, 274 N.W. 379. If the person accepting the ride does so for the purpose of conferring some substantial benefit upon the owner or operator of the motor vehicle there is `payment' within the meaning of the statute and such person is not a mere guest. McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909; Elliott v. Behner, 146 Kan. 827, 73 P.2d 1116, 1117; Elliott v. Camper 8 W.W.Har., Del., 504, 194 A. 130; Lyttle v. Monto, 248 Mass. 340, 142 N.E. 795.

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