Krantz v. Garmise

• Decision Date: 25 May 1961
• Parties: Robert KRANTZ and Joseph Ilowitz, Plaintiffs-Respondents, v. Louis GARMISE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 327

215 N.Y.S.2d 327

13 A.D.2d 426

Robert KRANTZ and Joseph Ilowitz, Plaintiffs-Respondents, v. Louis GARMISE, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 25, 1961.

Paul S. Edelman, New York City, of counsel (Harry E. Kreindler, New York City, with him on the brief, William S. Baron, New York City, atty.), for plaintiffs-respondents.

Jerome Schlapik, New York City, of counsel (Robert G. Sheller and Morris L. Wolf, New York City, with him on the brief, J. Rhodes O'Reilly, New York City, Atty.), for appellant.

Before BOTEIN, P. J., and VALENTE, STEVENS, EAGER and BERGAN, JJ.

HAROLD A. STEVENS, Justice.

This is an appeal from an order entered April 26, 1960, which granted a motion by plaintiffs to strike the affirmative defense of the California guest statute from the answer of the defendant.

The complaint alleges in part (and this is not denied by the answer) that the plaintiffs and defendant leased a motor vehicle from Auto Rentals of Hollywood, and there was an oral agreement to share equally the driving and expenses in connection with the use and operation of the car. While the defendant was driving the car in California an accident occurred and the plaintiffs sustained certain injuries. The complaint charges that the negligence of the defendant caused the accident. This is denied in the answer, which additionally pleaded as an affirmative defense,

'Fifth: That the laws of California contain the following provisions:

'Vehicle Code [1939]--Section 403 ¹.

'Liability for Personal Injury to or Death oof Guest.

'No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of such vehicle or against any other person legally liable for the conduct of such driver on account of personal injury to or the death of such guest during such ride, unless the plaintiff in any such action establishes that such injury or death proximately resulted from the intoxication or wilful misconduct of said driver.

'Sixth: That the plaintiffs herein were 'guests' within the meaning of the law of California and are thereby barred from any recovery because of their causes of action alleged in the complaint herein.'

Although affidavits and the minutes of an examination before trial were submitted in support of the motion and affidavits submitted in opposition thereto, the court considered the motion as a motion pursuant to Rule 109, subdivision 6, Rules of Civil Practice, and disregarded the affidavits. The court held as a matter of law that the defense pleaded was insufficient and granted the motion to dismiss.

Appellant now urges: (1) 'Plaintiffs were 'guests' within the meaning of the California Guest Statute and the Court below erred by granting the motion under Rule 109, Sub. 6, R.C.P. In any event, the defense should have been permitted to stand so as to allow defendant to develop the full facts at the trial.' (2) 'If the motion be regarded as one for summary judgment, judgment should be granted to defendant.'

Respondent asserts: (1) 'The plaintiffs could not be the 'guests' of defendant in a car which all three rented and to which all three had equal access and control.' (2) 'There were benefits conferred on defendant by the use of a common fund for expenses and by the agreement of the parties to share the driving.' (3) 'A judgment for the plaintiffs is proper as a matter of law.'

Rule 109 provides in pertinent part:

'After the service of an answer, the plaintiff may serve a notice of motion to * * * strike out a defense consisting of new matter contained therein, where one or more of the following defects appear on the face thereof: * * * 6. That the defense consisting of new matter is insufficient in law.'

Since the plaintiffs contended that the defense was insufficient in law, there was no error in considering the motion under Rule 109, subd. 6, R.C.P. Under that rule affidavits are not permitted. Monica Realty Corporation v. Bleecker, 229 App.Div. 184, 241 N.Y.S. 290; Romaneck v. Bauer, 250 App.Div. 734, 293 N.Y.S. 490. The insufficiency of the defense, however, must appear on the fact thereof. Charles v. Murphy, 284 App.Div. 987, 135 N.Y.S.2d 285.

The question to be considered is whether the defense stricken constitutes a possible defense to the cause of action purported to be alleged in the complaint, for a motion of this kind searches the record. Baxter v. McDonnell, 154 N.Y. 432, 48 N.E. 816 (demurrer to an affirmative defense); Manson v. Curtis, 223 N.Y. 313, 319, 119 N.E. 559, 561; Chelsea Exchange Bank v. Travelers Ins. Co., 173 App.Div. 829, 160 N.Y.S. 225.

A motion under Rule 109, subd. 6, R.C.P. 'is analogous to a motion for judgment dismissing the complaint under Rules of Civil Practice, rule 106, and is equivalent to a demurrer, although demurrer as such has been abolished. Code Civil Procedure § 494; Rules Civ.Prac. rule 109, subd. 6; Civ.Prac.Act, § 277.' Pierce v. Bristol, 130 Misc. 188, 189, 223 N.Y.S.2d 678, 679.

The matter set out in the answer as an affirmative defense should be weighed in the light of the allegations of the complaint. See, Schwartz v. Klein et al., 272 App.Div. 834, 70 N.Y.S.2d 591; cf. Manson v. Curtis, 233 N.Y. 313, 119 N.E. 559, supra. The truth of the allegation is assumed (Flynn v. New York World Telegram Corporation, 150 Misc. 241, 268 N.Y.S. 753), and the pleading liberally construed (Miller v. Cassini, 259 App.Div. 118, 18 N.Y.S.2d 454). If there is any doubt as to the availability and applicability of the defense or a mere belief that the proof might fall short of the defense, it should not be stricken. Cf., Denihan Enterprises, Inc. v. O'Dwyer, 302 N.Y. 451, 99 N.E.2d 235; Clode v. Scribner's Sons, 200 App.Div. 532, 193 N.Y.S. 176. The matter pleaded in the defense stricken had to be pleaded affirmatively and could not be embraced within a mere general denial. Cf. Gill v. Montgomery Ward & Co., 284 App.Div. 36, 129 N.Y.S.2d 288, 49 A.L.R.2d 1452.

Turning now to the pleading to which objection is made. No question has been raised as to the form of the pleading so that is not before us. In brief, the affirmative defense which must be read in its entirety asserts that these plaintiffs were persons who accepted a ride without giving compensation therefor; that there is no liability upon the defendant for any injuries which might have been sustained because it is not charged that such injuries resulted from any intoxication or willful misconduct on defendant's part as the driver of the vehicle.

The issue to be decided is whether we may say now as a matter of law that such defense should not be allowed to stand and await upon the evidence adduced at the trial for resolution.

In McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909, decided by the Supreme Court of California in 1937, rehearing denied August 24, 1937, the plaintiffs, husband and wife, 'sued to recover damages for personal injuries sustained by the wife when they were riding with the defendants (also husband and wife) in the latters' automobile in Santa Clara county'. 9 Cal.2d at page 280, 70 P.2d at page 910. The plaintiffs' case showed that the two couples were friendly and had mutually enjoyed social relationships and entertainment, sharing the cost equally. This was their first joint automobile trip which was purely a pleasure trip, and while there was no specific agreement, 'it was apparently the tacit and mutual understanding that such expenses [transportation, hotel and meals] would be shared equally,' 9 Cal.2d at page 280, 70 P.2d at page 910. An accident occurred as a result of a collision with another car while they were approaching an intersection. Defendant Hoffman was driving at a speed of approximately 60 miles per hour. The defendant's motion for a nonsuit was granted. The court concluded there was no willful misconduct. On appeal this was held not to be error, that at most the driver's conduct amounted to no more than negligence. The court then proceeded to consider whether the plaintiffs were 'guests' within the meaning of the California statute, or were 'passengers' who might be entitled to recover for ordinary negligence.

The court (by Shenk, J.) pointed out that before the enactment of the guest statute the degree of care to be exercised toward gratuitous passengers was governed by § 2096 of the Civil Code which provided that a carrier of persons without reward was answerable for a breach of ordinary care. The guest statute is in derogation of the common law and must be strictly construed. The court then stated that the term 'guest' has been defined by the Legislature as 'one who has not given compensation for the carriage' (9 Cal.2d at page 282, 70 P.2d at page 911) and 'that the nature of the compensation as contemplated by such a statute is as variable as the particular facts involved' (citing cases), 9 Cal.2d at page 283, 70 P.2d at page 911.

The court then laid down certain standards. If the relationship between the automobile host and the party riding with him is one of business and transportation is supplied in pursuit thereof for mutual benefit, compensation has been given and the party is a 'passenger' and is not precluded from recovery from the host for mere negligence as a 'guest'. Generally, there must be some benefit of a tangible nature conferred on the driver or his principal by reason of the transportation, and the courts have uniformly held 'one to be a passenger and not a guest who embarks upon a joint venture of a business nature rather than of a merely social aspect.' 9 Cal.2d at page 284, 70 P.2d at page 912.

'The great weight of authority is to the effect that the sharing of the cost of gasoline and oil consumed on a trip, when that trip is taken for pleasure or social purposes, is nothing more than the exchange of social amenities and does not transform into a passenger one who...