Goldberg v. Cook

• Decision Date: 15 December 1939
• Docket Number: 32090.
• Citation: Goldberg v. Cook, 289 N.W. 512, 206 Minn. 450 (Minn. 1939)
• Parties: GOLDBERG v. COOK.
• Court: Minnesota Supreme Court

289 N.W. 512

206 Minn. 450

GOLDBERG v. COOK.

No. 32090.

Supreme Court of Minnesota.

December 15, 1939

Reargument Denied Jan. 18, 1940.

Appeal from District Court, St. Louis County; Mark Nolan, Judge.

Action by Flora H. Goldberg against Fern J. Cook, for injuries suffered in automobile collision.From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

Syllabus by the Court .

1.A person transported for the benefit of the owner or operator of an automobile is not a guest without payment for his transportation within the meaning of the Texas guest statuteGeneral Laws Texas, 1931, c. 225, § 1, p. 379, Vernon'sTexas St.1936, Article 6701b, § 1.

2.A passenger sitting in the rear seat of an automobile, who is not controlling and has no right of control over the driver and is not aware of danger of collision until the collision is unavoidable and it is impossible for her to do anything about it, is not guilty of contributory negligence as a matter of law.

William E. Tracy, of Duluth, for appellant.

Jenswold & Dahle, of Duluth, for respondent.

PETERSON, Justice.

Plaintiff, who is defendant's mother, brings this action to recover for personal injuries sustained on December 14, 1935, while riding in the latter's automobile near Van Horn in the state of Texas, en route with defendant and her two children from Duluth, Minnesota, to Los Angeles, California.

Defendant's husband had been advised by his physician to spend the approaching winter in California in order to escape the cold in Duluth.The family planned to be with him.Defendant was to go ahead of him, take the children, the maid, and the family car with her, rent a house in or near Los Angeles and complete all arrangements there before the husband left Duluth.He was unable to stand an automobile trip and was to go by train.A young man living in Duluth was to drive the car.

Plaintiff by an arrangement with defendant before they left agreed to go along for the sole purpose of helping her.Defendant and her husband importuned plaintiff over a period of several weeks to go along.She refused for the reasons that the trip would serve no purpose of hers, inasmuch as she had been in California twice within recent years, that she preferred to be in her own home where she lived happily and comfortably with her son and daughter-in-law, and that she could not afford whatever expense might be incident to the trip.The daughter desired her along to help her with the children on the trip, to be with her in Los Angeles and help her get settled there.She finally agreed to go for the sole purpose of assisting her daughter in the respects mentioned.While the purpose was as stated, plaintiff was not hired, she was not to be paid for any service rendered, nor did she expect any reward.Defendant's expenditures for the trip were not to be compensation for plaintiff's going along.

The parties left Duluth on the morning of December 10.On the evening of the 14th as they were driving on a pavement 21 1/2 feet wide, which was straight at that place, near Van Horn, the automobile had a head-on collision with a car driven by one Bowers.Defendant's car was going down a slight grade at about 50 to 55 miles per hour.It was about 7:30 P. M. and dark.Both cars had their headlights on.Plaintiff was sitting in the rear seat on the right side looking ahead.She saw the Bowers car coming from the opposite direction about a block away.Suddenly, she saw that the lights of the Bowers car were shining in her face, and then the cars collided head-on.Up to the time of the impact, there was nothing to excite plaintiff's apprehension or notice.Bowers testified that defendant's car came over on his side of the pavement and hit him.Defendant's driver testified that he did not see the Bowers car before the collision and that he was not dozing.

While the evidence showed the speed of defendant's car to be as stated, plaintiff did not know how fast it was going.Under the Texas law speed in excess of 45 miles per hour is negligence per se.

Defendant did not appear as a witness.

Defendant contends that plaintiff was a guest without payment for her transportation within the meaning of General Laws of Texas, 1931, c. 225, § 1, p. 379, Vernon'sTexas St.1936, Article 6701b, § 1,^[1] and not entitled to recover unless the accident was caused intentionally by the defendant, or by her heedlessness and reckless disregard of the rights of plaintiff.Plaintiff admitted that the accident was not caused intentionally, or through heedlessness or reckless disregard of her rights.She insisted that she was not a guest and not subject to the statute at all.Defendant also made a further claim that plaintiff was guilty of contributory negligence.

Whether plaintiff was a guest was submitted to the jury.The Texas statute was read to the jury.The court instructed the jury that plaintiff was not a guest without payment for her transportation if she accompanied defendant on the trip under an oral agreement to assist her with the performance of some duty or duties or for the mutual, definite and tangible benefit of defendant on the one hand and plaintiff on the other.It refused to submit the issue of plaintiff's contributory negligence to the jury.The effect of the charge was that if plaintiff were a guest she was not entitled to recover; but, if she were not a guest, she was entitled to recover if the jury found defendant guilty of ordinary negligence.Plaintiff had a verdict and defendant appeals.

Here, as below, defendant contends that the evidence conclusively showed that plaintiff was a guest within the meaning of the Texas statute and that plaintiff's contributory negligence was a fact question for the jury.

1.The parties concede that the Texas guest statute was adopted from Connecticut with the judicial construction thereof by the highest court of that state prior to its adoption by Texas.Each party has cited cases to sustain that proposition, among which are Napier v. Mooneyham, Tex.Civ.App.,94 S.W.2d 564;Aycock v. Green, Tex.Civ.App.,94 S.W.2d 894;Scott v. Gardner, Tex.Civ.App.,106 S.W.2d 1109;Johnson v. Smither, Tex.Civ.App.,116 S.W.2d 812.

There is no decision of the supreme court of Texas on the precise question before us.Absent such a decision, there is no controlling Texas authority, although there are decisions by some of the courts of civil appeals.See: 15 C.J. pp. 1114-1120, §§ 555-556.The delicate task of construing a statute of a sister state must therefore be performed here as it was in Teders v. Rothermel,205 Minn. 470, 286 N.W. 353.

In Elkins v. Foster, Tex.Civ.App.,101 S.W.2d 294, defendant transported plaintiff gratuitously for the purpose of having plaintiff exert political influence to save defendant's brother's position as postmaster.Plaintiff's efforts were solely out of regard for his friendship with defendant and entirely apart from his being transported without payment for the ride.The retention of the brother as postmaster was of financial benefit to defendant.The court held that plaintiff was not a guest, but a passenger.In Johnson v. Smither, supra, plaintiff, who had employed defendant as broker to sell or trade her farm, was injured while riding with him for the purpose of showing him the way to the farm so he might be able to show it to prospective purchasers.The court, following Kruy v. Smith,108 Conn. 628, 144 A. 304, and other Connecticut cases, held that a person transported for the mutual benefit of the parties is not a guest within the meaning of the statute.

Defendant cites as opposed to Elkins v. Foster and Johnson v. Smither, supra, the cases of Raub v. Rowe, Tex.Civ.App.,119 S.W.2d 190, andRowe v. Rowe, Tex.Civ.App.,119 S.W.2d 194.In Raub v. Rowe, supra, it was held that payment by a person transported as defendant's guest of his proportionate share of the expense of a trip pursuant to an arrangement made in advance did not constitute payment for his transportation and that the rider was a guest.The question was not whether the rider was a guest, but whether, assuming that he was, his contribution of a share of the cost was payment for the ride.The decision is not in point and, so far as concerns the point decided, is opposed to the weight of authority.SeeTeders v. Rothermel, supra, Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663.In Rowe v. Rowe, supra, a companion case to Raub v. Rowe, supra, the plaintiff, who was defendant's nephew, went along on the trip as the guest of the others so that the other members of the party, who were women, might have a man along and to assist them when necessary.The court did not take notice of the beneficial nature of plaintiff's services to defendant and held that the case was governed by its companion, Raub v. Rowe, supra.

The Rowe cases, decided by the El Paso Civil Court of Appeals, are not to be followed for the reason that decision was based upon the proposition that each rider was present for his own benefit.That in itself distinguishes those cases from the instant one, since the finding implicit in the verdict here is that plaintiff's transportation was for defendant's benefit.Where the rider is transported not for his own but for the operator's benefit, an entirely different question is presented.The question as pointed out in Elkins v. Foster, supra, is whether such a transported party is a guest.It seems that Elkins v. Foster and Johnson v. Smither, decided by the Amerillo and Fort Worth Civil Courts of Appeals, respectively, holding that one who is transported for the benefit of the owner of the automobile is not a guest, are in accord with the Connecticut rule, which Texas adopted as the proper construction of the statute.

The Texas guest s...