Kerstetter v. Elfman, 190

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtMR. JUSTICE STERN:
Citation327 Pa. 17,192 A. 663
PartiesKerstetter, Appellant, v. Elfman
Decision Date25 June 1937
Docket Number190,191

192 A. 663

327 Pa. 17

Kerstetter, Appellant,
v.

Elfman

Nos. 190, 191

Supreme Court of Pennsylvania

June 25, 1937


Argued: May 24, 1937

Appeals, Nos. 190 and 191, Jan. T., 1937, from judgments of C.P. Delaware Co., June T., 1935, No. 1433 and Sept. T., 1935, No. 393, respectively, in cases of Stanley Dean Kerstetter v. Harry Elfman; and Hobart M. Kerstetter v. Harry Elfman. Judgments reversed and new trials awarded.

Trespass for personal injuries. Before BROOMALL, J.

The opinion of the Supreme Court states the facts.

Verdicts and judgments for defendant. Plaintiffs appealed.

Errors assigned, among others, were various excerpts from charge.

The judgments are reversed and new trials awarded.

Guy G. deFuria, with him Joseph W. deFuria, for appellants.

Paul Lane Ives, with him J. Borton Weeks, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

[327 Pa. 18] MR. JUSTICE STERN:

At about 2:30 a.m. on Sunday, August 25, 1935, a party of ten young men left Chester to go to Lewes, Delaware, on a fishing trip. They journeyed in three automobiles, five of them, including plaintiffs, being in defendant's car. At a point on the Dupont Highway in Delaware between St. Georges and McDonough, an accident occurred in which plaintiffs were injured, and they brought these suits against defendant, alleging it was his fault that caused the accident. The learned trial judge instructed the jury there could be no recovery unless defendant had committed an act of an intentional, wilful or wanton nature. The jury rendered verdicts for defendant; they also made special findings to the effect that the accident had not been intentional on the part of defendant nor caused by his wilful or wanton disregard of plaintiffs' rights. The court below overruled motions for new trials; plaintiffs appeal on the ground that they should have been allowed recovery even though not able to prove more than ordinary negligence on the part of defendant. This question results from the Delaware Automobile Guest statute, [192 A. 664] it being admitted by both parties that defendant's responsibility must be determined by the lex loci delicti: Mike v. Lian, 322 Pa. 353. The statute has been held constitutional: Hazzard v. Alexander, 36 Del. 212, 173 A. 517; Gallegher v. Davis, 183 A. 620, [1] but there are no decisions in Delaware construing it, and in the absence of such interpretation [327 Pa. 19] that duty devolves upon our own courts: Mike v. Lian, supra.

There are now twenty-six states in which automobile guest statutes are in force. [2] The Delaware act (May 22, 1933, 38 Delaware Laws c. 26) provides: "Section 1. 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 such owner or operator or caused by his wilful or wanton disregard of the rights of others." The question involved in the present case is whether plaintiffs came within the terms of this act; it arises from the fact that before the trip started the members of the party agreed among themselves that all the expenses, including the cost of gasoline and oil for the automobiles, were to be divided equally, plaintiff Stanley Dean Kerstetter to act as temporary paymaster and be subsequently reimbursed by the others paying their respective shares. Defendant called attention to the fact that he already had the tank full of gasoline, and it was arranged that an allowance should be made to him accordingly on final accounting. It may be mentioned incidentally that plaintiffs were not friends, nor even acquaintances, of defendant; they had never met him before starting on this trip and indeed knew only one other of the members of the party.

It will be noted that in order for the act to apply so as to protect the owner or operator of the car from liability for merely ordinary negligence two circumstances must exist: (1) The injured rider must be a "guest" of the owner or operator; and (2) the latter must not [327 Pa. 20] receive "payment" for the transportation. The statute thus recognizes that a guest may be a person who is not entertained gratuitously but who pays for the service rendered to him. A common illustration of a paying guest is the "guest" of a hotel. In the present case plaintiffs undoubtedly were guests of defendant in the sense that he was transporting them in his automobile. The question remains, however, was he without payment for their transportation, or, to state it differently, did their contribution toward the expenses of oil and gasoline constitute a payment to defendant -- not necessarily a full or a reasonable payment, but any payment?

This question would seem almost to answer itself. Had plaintiffs not made their agreement to share the expenses, defendant himself would have been obliged to pay for all the gasoline and oil consumed, and since the...

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29 practice notes
  • Duncan v. Hutchinson, 28662.
    • United States
    • United States State Supreme Court of Ohio
    • 21 Enero 1942
    ...a passenger and not a guest transported 'without payment for such transportation' under the Delaware Guest Statute. Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663, 664. In the case at bar, the proposal of the plaintiff to pay her share of the gasoline and oil on this trip, which was purely so......
  • Smith v. Clute
    • United States
    • New York Court of Appeals
    • 12 Abril 1938
    ...toward the expenses was not a guest within the purview of the statute. Beer v. Beer, 52 Ohio App. 276, 3 N.E.2d 702;Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663;Campbell v. Campbell, 104 Vt. 468, 162 A. 379, 85 A.L.R. 626;O'Brien v. Woldson, 149 Wash. 192, 270 P. 304, 62 A.L.R. 436;Lloyd v.......
  • Fountain v. Tidwell, No. 35547
    • United States
    • United States Court of Appeals (Georgia)
    • 31 Mayo 1955
    ...645, 15 Automobile Cases 79; McMahon v. De Kraay, 1944, 70 S.D. 180, 16 N.W.2d 308, 22 Automobile Cases 141; Kerstetter v. Elfman, 1937, 327 Pa. 17, 192 A. 663; Smith v. Clute, 277 N.Y. 407, 14 N.E.2d 455 (1938); Hasbrook v. Wingate, 1949, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R.2d 1342, 32......
  • O'hagan v. Byron.
    • United States
    • Superior Court of Pennsylvania
    • 28 Septiembre 1943
    ...responsibility for plaintiff's harm is determined by the law of Ohio. Mike et al. v. Lian, 322 Pa. 353, 185 A. 775; Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663; Sudol et ux v. Gorga, 346 Pa. 463, 31 A.2d 119; Restatement, Conflict of Laws, § 379. The Ohio statute (Page's Ann.Gen.Code, § 63......
  • Request a trial to view additional results
29 cases
  • Duncan v. Hutchinson, 28662.
    • United States
    • United States State Supreme Court of Ohio
    • 21 Enero 1942
    ...a passenger and not a guest transported 'without payment for such transportation' under the Delaware Guest Statute. Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663, 664. In the case at bar, the proposal of the plaintiff to pay her share of the gasoline and oil on this trip, which was purely so......
  • Smith v. Clute
    • United States
    • New York Court of Appeals
    • 12 Abril 1938
    ...toward the expenses was not a guest within the purview of the statute. Beer v. Beer, 52 Ohio App. 276, 3 N.E.2d 702;Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663;Campbell v. Campbell, 104 Vt. 468, 162 A. 379, 85 A.L.R. 626;O'Brien v. Woldson, 149 Wash. 192, 270 P. 304, 62 A.L.R. 436;Lloyd v.......
  • Fountain v. Tidwell, No. 35547
    • United States
    • United States Court of Appeals (Georgia)
    • 31 Mayo 1955
    ...645, 15 Automobile Cases 79; McMahon v. De Kraay, 1944, 70 S.D. 180, 16 N.W.2d 308, 22 Automobile Cases 141; Kerstetter v. Elfman, 1937, 327 Pa. 17, 192 A. 663; Smith v. Clute, 277 N.Y. 407, 14 N.E.2d 455 (1938); Hasbrook v. Wingate, 1949, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R.2d 1342, 32......
  • O'hagan v. Byron.
    • United States
    • Superior Court of Pennsylvania
    • 28 Septiembre 1943
    ...responsibility for plaintiff's harm is determined by the law of Ohio. Mike et al. v. Lian, 322 Pa. 353, 185 A. 775; Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663; Sudol et ux v. Gorga, 346 Pa. 463, 31 A.2d 119; Restatement, Conflict of Laws, § 379. The Ohio statute (Page's Ann.Gen.Code, § 63......
  • Request a trial to view additional results

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