Hainey v. Zink

• Decision Date: 24 September 1979
• Docket Number: No. 1-678-A-162,1-678-A-162
• Parties: Chester HAINEY and Baird Mobile Homes, Inc., Appellants, v. Jack ZINK, Larry Zink, and Steve Zink, d/b/a Zink & Sons Wrecker Service, Appellees.
• Court: Indiana Appellate Court

Page 238

394 N.E.2d 238

182 Ind.App. 192

Chester HAINEY and Baird Mobile Homes, Inc., Appellants, v. Jack ZINK, Larry Zink, and Steve Zink, d/b/a Zink & Sons

Wrecker Service, Appellees.

No. 1-678-A-162.

Court of Appeals of Indiana, First District.

Sept. 24, 1979.

David V. Scott, Rebecca G. Looney, Kelso & Scott, New Albany, for appellants.

Richard L. Fairchild, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellees.

LYBROOK, Judge.

Chester Hainey (Hainey) was driving a truck under the employ of Baird Mobile Homes, Inc. (Baird). In the course of his employment, Hainey was towing a mobile home from Indiana to Ohio, using a truck owned by Baird. On the way to Ohio, the truck Hainey was driving broke down, whereupon he parked the truck at a truckstop. A wrecker was summoned from Zink & Sons Wrecker Service (Zink).

The wrecker came to tow the broken truck to a garage for repairs. The wrecker also provided Hainey with a ride back to his automobile. While towing the broken Baird truck and giving Hainey a ride, the Zink wrecker was involved in an accident, resulting in personal injury to Hainey and property damage to the Baird truck.

Hainey brought suit against Zink for personal injuries he suffered in the accident. Thereafter, Baird, pursuant to Ind.Rules of Procedure, Trial Rule 24(B), filed a motion to intervene in the suit. Baird sought recovery for damages to its truck that resulted from the accident.

At the close of the plaintiffs' proof, the trial court withdrew Hainey's case from the jury and granted judgment on the evidence in favor of Zink. The trial court determined that Hainey was a guest in the Zink wrecker, thereby coming within the Indiana Guest Statute. Ind.Code 9-3-3-1. Hainey filed a timely motion to correct errors and a timely praecipe. Additionally, the jury found for Zink and against Baird. Baird filed a timely motion to correct errors and a timely praecipe. This appeal results.

Both the judgment on the evidence in favor of Zink, and the jury verdict in favor of Zink, are reversed.

I.

In his motion to correct errors, Hainey presents the following issues for our review:

1) Whether the court erred in granting the defendants' motion for judgment on the evidence on the grounds that the Guest Statute was applicable to preclude recovery for negligence?

2) Whether the evidence was sufficient to permit a finding that Hainey was a passenger for consideration, and not a guest, in Zink's wrecker at the time of the accident?

3) Whether the evidence was sufficient to permit a finding that there existed a carrier-passenger relationship between Hainey and Zink at the time of the accident, thereby precluding the operation of the Guest Statute to relieve Zink from liability?

Since we reverse the granting of judgment on the evidence in favor of Zink, we need not discuss all of Hainey's allegations of error. The pivotal question upon which rests the propriety of the trial court's granting Zink's motion for judgment on the evidence is whether or not Hainey was a guest in the Zink wrecker.

The Indiana Guest Statute, Ind.Code 9-3-3-1 states:

"The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while Being transported without payment therefor, in or upon such motor vehicle, resulting from the operation thereof, unless such injuries or death are (sic) caused by the wanton or willful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle." (Emphasis added.)

The key to determining whether or not Hainey was a guest turns on the words "without payment therefor;" in other words, was valuable consideration given for the ride, or was Zink directly compensated in a substantial and material way? Furniss et ux. v. Waters, (1971) 150 Ind.App. 566, 277 N.E.2d 48. See also Liberty Mutual Ins. Co. v. Stitzle, (1942) 220 Ind. 180, 41 N.E.2d 133. If compensation or material consideration was received by Zink, then Hainey was not a guest.

This flow of consideration or payment "involves not simply a weighing of benefits given and received but also contemplation of the factors surrounding the transportation which are indicative of the status of the passenger." Furniss, supra, 150 Ind.App. at 569, 277 N.E.2d at 50. In Allison v. Ely, (1960) 241 Ind. 248, 262-63, 170 N.E.2d 371, 378, our Supreme Court stated that there are many factors to be used by a court in distinguishing a guest from a passenger for hire:

"1. The motives and purposes which actuate the transaction are of prime importance. (Citations omitted.)

2. The motivating reasons for the invitation to ride determine the character of the passenger, and the purpose of the trip. (Citations omitted.)

3. If the purpose of the trip is primarily for business as distinguished from pleasure or social, and the presence of the passenger in the motor vehicle directly compensates the owner or operator thereof in a substantial and material way, then the guest relationship does not exist. (Citations omitted.)

4. If the trip is primarily social or for pleasure as distinguished from business, incidental benefits, even the payment of money, do not exclude the guest relationship. (Citations omitted.)

5. The word 'guest' has more 'social' than 'business' significance. (Citations omitted.)"

In the case at bar, the relationship between Hainey and Zink was not social. Zink provided transportation to Hainey not merely for Hainey's convenience, but to increase the business goodwill of Zink & Sons Wrecker Service. The benefit flowing from Hainey to Zink was the fact that Hainey would appreciate the kindness extended by Zink in providing him a ride, and that such kindness would be repaid with future business, good reputation in the wrecker business, and/or an increase in the goodwill of Zink & Sons Wrecker Service. Such benefits to Zink are certainly more of a business nature than a social one. Although a certain social gratitude would flow between Zink and Hainey for the "gratuitous" ride, the essence of the courtesy was not gratuitous in nature.

As a result of the evidence presented at trial concerning the "guest" or "passenger for hire" issue, we do not feel that the "passenger for hire" status of Hainey...