Haley v. Dreesen

• Decision Date: 05 March 1975
• Docket Number: No. 4420,4420
• Citation: 532 P.2d 399
• Parties: Sunny Y. HALEY, Appellant (Defendant below), v. Wanda DREESEN, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 399

532 P.2d 399

Sunny Y. HALEY, Appellant (Defendant below), v.Wanda DREESEN, Appellee (Plaintiff below).

No. 4420.

Supreme Court of Wyoming.

March 5, 1975.

Rex O. Arney, and Tom C. Toner, of Redle, Yonkee & Arney, Sheridan, for appellant.

John E. Stanfield, of Smith, Stanfield & Mendicino, Laramie, for appellee.

Before McEWAN, ^* C. J., and GUTHRIE, McCLINTOCK, RAPER and THOMAS, JJ.

McCLINTOCK, Justice.

Sunny Y. Haley appeals from the judgment of the District Court of Campbell County, Wyoming entered upon jury verdict against her and in favor of Wanda Dreesen.¹The recovery was for damages for injuries suffered by plaintiff when an automobile owned and operated by defendant and in which plaintiff was a passenger went out of control and left the highway.

Two questions are raised by the appeal: The propriety of an instruction given by the trial court relating to plaintiff's status as a guest within the meaning of § 31-233, W.S.1957, C.1967; and the propriety of the admission into evidence of facts relating to defendant's plea of guilty to traffic violation, the charge in which was filed as an aftermath of the accident.

The accident occurred on the return portion of a round trip from Cheyenne to Lusk of March 8, 1971.At the time of the accident defendant was driving the automobile which belonged to her, plaintiff was in the right front seat, and Sean, defendant's five-year-old son, was in the back seat.The accident appears to have occurred when defendant's attention was diverted from her driving to a problem of Sean's who 'sang out' that he had gotten his fingers caught in the course of attempting to lower the headrest on the back of plaintiff's seat.While her attention was so diverted defendant's car came close to going off the road on the right side; she then pulled it to the left, but lost control so that it went into the borrow pit on the left side of the road, proceeding thence for some distance, partly in the air, and coming to a stop, still in the borrow pit, facing the direction from which it had been proceeding.²

Defendant had been employed by plaintiff's sister in a restaurant at Lusk which on March 8 was closed down for repairs, and was then unemployed and drawing benefits under the state employment security law.On March 7she had returned from a ten-day bus trip to Iowa, during which time Sean had remained under the care of plaintiff at her home in Cheyenne.It is not disputed that the primary purpose of the trip to Lusk was for defendant to obtain her current unemployment check and to refile for further benefits.Plaintiff went along, as she testified, 'to help take care of Sean.And I didn't want to go and she talked me into going.She didn't like to drive with him because he's hyperactive and is hard to handle in the car, so I went.'On cross examination she was asked if she was not also motivated in the trip because she did not want Sean to get in the way of remodeling at her sister's home.Plaintiff replied that she did not know the extent of the remodeling but Sunny (defendant) did and 'she was worried about what he would get into and the damage he might cause.'To the question, 'And you thought you should go along so that you could watch out for him?'she replied, 'I didn't think I should go.Sunny thought that I should go and watch him.'

Defendant's testimony showed mostly a lack of recall.To the question whether she recalled any agreement with her mother relative to the trip, she replied that she did not.She could not recall whether she had specifically asked her mother to accompany her.She did not remember how her mother came to be with her on that occasion.She could not say one way or the other as to whether there was an agreement as to the payment of the expenses of the trip.To the question whether she expected to receive any benefit from the mother as a result of giving her this ride she said, 'No,' but to the question whether it was not 'a fact that your mother went along on the trip to watch Sean'she replied, 'I don't recall,' and conceded that could be the situation.She went on to testify that she had taken Sean on trips without a third person being present and that he was good in the car.

Citing cases³ holding that the benefit to the driver was merely social and not material, defendant contends that where a passenger has been injured, her or she is a 'guest without payment for such transportation' within the meaning and purpose of § 31-233, W.S.1957, C.1967, unless a substantial, definite, and tangible benefit in a material or business sense results to the driver, and the transportation must be motivated and induced by the expectation of this type of benefit.While this Court has previously indicated that if the purpose of the trip is purely social the relation to the passenger to the driver is that of guest, Herring v. Coose, Wyo., 434 P.2d 531(1967) it has also indicated that it is not necessary, in order that a passenger be removed from guest status, that a pecuniary benefit be conferred upon the driver by the passenger, Fox v. Fox, 75 Wyo. 390, 296 P.2d 252(1956).In Hinton v. Wilmes, 80 Wyo. 360, 343 P.2d 201, 204(1959), in the course of discussion of cases bearing upon what is a gratutious passenger, we said:

'If a person wants assistance of another in connection with domestic duties, the person whose assistance is sought is not a guest but a passenger in riding in the automobile of the person who seeks the assistance.'(CitingShapiro v. Bookspan, 155 Cal.App.2d 353, 318 P.2d 213.)

The distinction between social guest and passenger is outlined in Getchell v. Reilly, 242 Ore. 263, 409 P.2d 327, 328(1965), by reference to 2 Harper and James, The Law of Torts 958(1956), where it is said:

'On the other hand, "Guest' should be defined so as to include only those who ride gratuitously in every substantial sense.It should exclude those who ride with the host for a common purpose (other than pleasure), or primarily as a favor to the host (though not in the way of business) * * *."

We do not interpret defendant's argument in this Court as a rejection of that principle nor to argue that there was no evidence before the jury which would justify it in finding that there was in this case a substantial and material benefit to the defendant.The error of the trial court is said to lie only in its failure to explain to the jury what benefits could be considered by the jury as taking plaintiff out of the guest status.

We first note that defendant's requested Instruction E would have told the jury that a person is a guest when he is there at the invitation of the driver and 'if he accepts the invitation without making or having agreed to make payment for such transportation' without further information as to what could be considered a payment or the equivalent thereof.Instruction 8A, as given by the trial court, is essentially the same as this, except that there are added thereto the words 'or unless the driver received benefit therefrom.'Defendant's objection to the refusal of Instruction E was that 'it correctly sets forth a definition of guest under the Wyoming statute and case law,' and her objection to giving Instruction 8A and that portion thereof, 'or unless the driver received benefit therefrom' was on the ground that 'such language is not sufficiently definitive so as to be readily understood by the jury.'

Rule 51, W.R.C.P. provides in pertinent part:

'(A)ny party may file written requests that the court instruct the jury on the law as set forth in the requests.* * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stanting distinctly the matter to which he objects and the grounds of the objection.'

It has been said in 5A Moore's Federal Practice§ 51.04, p. 2521, that the spirit and purpose of Rule 51'is to inform the trial judge of possible errors so he may have an opportunity to correct them.(Citing numerous authorities.)'When an assignment of error is premised upon an objection to an instruction which has been given the record must contain a clear statement, defining the matter objected to and explaining the grounds of the objection, sufficient to inform the trial judge of possible errors so he may have an opportunity to correct them.While this latter situation does not always require the submission of the objection party's version of a proper instruction, if his objection is to the form or language of an instruction, rather than to the propriety of giving any instruction on the issue, the best way to inform the court of his position is by the submission of his suggested language, in writing if possible.

In Pure Gas and Chemical Company v. Cook, Wyo., 526 P.2d 986, 990-991(1974)we held that an objection to instruction 'as being superfluous and not adding anything to the statement of the law and tends to confusion in the understanding of the instruction' was not one 'stating distinctly the matter to which he objects and the grounds of the objection' and does not indicate 'with definiteness and particularity the error asserted.'In Texas Gulf Sulphur Company v. Robles, Wyo., 511 P.2d 963, 969(1973), after pointing out that the trial court had given appellant adequate opportunity to submit proper instructions, but without avail, we said:

'This court has heretofore observed that the parties not only have this right but this duty, and in the absence of submission of a proper written instruction they are deemed to have waived the claimed error * * *.'(CitingLogan v. Pacific Intermountain Express Company, Wyo., 400 P.2d 488, 492(1965).)

We cannot rid ourselves of the impression that defendant was attempting to present the cause to the jury on the theory that payment meant payment in cash or the equivalent, such as paying expenses of the trip, and that only when she gets into this Court is she willing to concede that there...