Kerstetter v. Elfman

• Decision Date: 25 June 1937
• Docket Number: 190,191
• Parties: Kerstetter, Appellant, v. Elfman
• Court: Pennsylvania Supreme Court

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

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, 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 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 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 presence of plaintiffs in the automobile did not add in any way to the cost of operation of the car, the money furnished by plaintiffs was a clear contribution, a net saving, to defendant, reducing the amount which he would have been required to expend had he been transporting plaintiffs gratuitously. Suppose, for example, that the expenses had been calculated in advance and plaintiffs had actually paid their proportionate share to defendant before starting on the trip, stating that they were giving him the money in consideration of his transporting them to Lewes. It would seem clear that defendant would be receiving a "payment" for their transportation. And yet the facts thus assumed are substantially in legal identity with those in the present case.

In considering the cases in other jurisdictions having automobile guest statutes, it is important to bear in mind the variations in the phraseology of the acts. In California the statute covers a person "who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride." It has been decided in that state that "compensation" is not limited to the actual handing over of a definite, material payment, but may consist of any benefit conferred upon the owner or operator by the rider's presence in the car, as, for example, where a prospective purchaser of an automobile is given a ride in order to demonstrate to him the good qualities of the car: Crawford v. Foster, 110 Cal.App. 81, 293 P. 841. ^[3] On the other hand it is held there that no profit or beneficial advantage accrues to the owner or operator in the sharing of expenses, and therefore such an arrangement does not give him "compensation" for the ride: Rogers v. Vreeland, 16 Cal.App. (2d) 364, 60 P.2d 585; Walker v. Adamson, 70 P.2d 914; ^[4] McCann v. Hoffman, 70 P.2d 909. These decisions may perhaps be justified by the etymology and exact meaning of the word "compensation," which connotes equivalency, that is to say, a payment which adequately remunerates, makes amends for a wrong done, or pays for a service rendered.

A distinction must also be carefully made between cases involving an enforceable agreement to share the expenses of an automobile trip and those in which there is merely a voluntary payment of expenses, or part of them, by a rider not in liquidation of a contractual liability assumed by him, but to return the favors of a host as a matter of social amenity and companionship, as, for illustration, by paying for a meal, buying gas, or helping to provide food or cigars. The authorities holding that the sharing of expenses by those in an automobile does not take them out of the class of gratuitous guests and deprive the owner and operator of the car of the protection afforded by the statute, will be found on analysis to be cases where there was no pre-existing agreement between the parties: Morgan v. Tourangeau, 259 Mich. 598, 244 N.W. 173; Ernest v. Bellville, 53 Ohio App. 110, 4 N.E.2d 286; Master v. Horowitz, 261 N.Y.S. 722, affirmed 262 N.Y. 609, 188 N.E. 86; see also Sleeper v. Massachusetts Bonding & Ins. Co., 283 Mass. 511, 186 N.E. 778, explaining Askowith v. Massell, 260 Mass. 202, 156 N.E. 875. On the other hand, where there is such an understanding or contract, whether express or...