Liberty Mut. Ins. Co. v. Stitzle

• Decision Date: 22 April 1942
• Docket Number: 27613.
• Parties: LIBERTY MUT. INS. CO. v. STITZLE.
• Court: Indiana Supreme Court

41 N.E.2d 133

220 Ind. 180

LIBERTY MUT. INS. CO. v. STITZLE.

No. 27613.

Supreme Court of Indiana

April 22, 1942

Appeal from Circuit Court, Parke County; Howard L. Hancock judge.

Adamson Blair & Adamson and Thos. P. Gallagher, all of Terre Haute, for appellant.

Cooper Royse, Gambill & Crawford, of Terre Haute, and McFaddin & McFaddin, of Rockville, for appellee.

RICHMAN Judge.

Appellee's demurrers for want of facts were sustained to each of the two paragraphs of appellant's complaint. Declining to plead further appellant suffered judgment that it take nothing and appealed assigning separately as errors the rulings on the demurrers. The paragraphs are alike except as hereinafter indicated. We have condensed most of the allegations but quote where necessary.

Appellant carried compensation insurance on S. P. Brown & Co. which operated a household furnishing department in the Herz store in Terre Haute. Max Wallrich was the manager of the department and Merle Smedley an interior decorator and salesman therein employed. Appellee (defendant) was a customer of the department. The three 'met' at about 5:30 a. m. September 1, 1936, and in appellee's car she, Wallrich, Smedley, Alice Miller and Myrtle Spohr started to Chicago. At the request of appellee, Wallrich was driving and appellee 'was riding and directing the driving of said automobile from the front seat.' Smedley and the other two 'passengers' were in the rear seat. 'The purpose of said trip was for the mutual, definite and tangible benefit of said defendant and said employees of said S. P. Brown & Company in that said defendant was furnishing her home by purchases from the S. P. Brown & Company Department at Terre Haute * * *, and that in doing the same it was necessary for said defendant and said employees to go to Chicago to select furniture and furnishings from the wholesale marts, which furniture and furnishings would be sold to her by and through the S. P. Brown & Company department * * * in which said employees would receive both a stated salary and a commission.'

Smedley 'while engaged in acts within the scope of his employment, and arising out of his employment was injured by reason of negligence of said defendant' who 'carelessly and negligently interfered with the driver of said automobile in operating said automobile' by seizing the steering wheel and jerking the same from the hands and control of Wallrich in such a manner as to cramp the wheels, causing the car to turn over and catch fire injuring Smedley.

Smedley elected to claim and was awarded compensation from his employer for a period of 500 weeks of which appellant as insurance carrier has paid $1,433.10 and is obligated in the future to pay $3,566.90, and has paid medical expenses in the sum of $5,914, all of which are required by the Workmen's Compensation Act. The total liability of appellant under the award is $10,194.

In its first paragraph appellant as subrogee of Smedley seeks to recover from appellee on account of her negligent injury of Smedley the exact amount of the award, $10,194, plus interest. In its second paragraph it seeks to recover Smedley's actual damages measured by the ordinary rules in common law actions for personal injuries but not exceeding the sum of $10,194.

The first question presented is whether the relationship between appellee and Smedley was that of host and guest within the meaning of our 'Guest Statute.' If so, each paragraph of the complaint is bad for its failure to allege that the accident was intentional on the part of appellee or caused by her reckless disregard of the rights of others. There are no Indiana precedents.

We may eliminate the subject of imputed negligence which occupies considerable space in the briefs. If the guest relationship exists no question of negligence is involved. Conduct that is intentional or in reckless disregard of the rights of others is not imputed to an intermediary between the person charged with and the person seeking to recover on account of such conduct. Besides there is here no such intermediary. Appellee's own act in grabbing the wheel caused the upset in which Smedley was injured. To impute negligence there must always be a third person through whom it may be imputed. So even if Smedley was not a guest, there is no question herein of imputed negligence and the discussion thereof merely confuses the issue.

Much space in the briefs is also devoted to the subject of 'joint enterprise.' This also is confusing. All that we need determine to hold the complaint good as against the first principal contention is that Smedley was not a guest. The statute in force in 1936 when this cause of action arose reads as follows: (Acts 1929, Ch. 201, § 1, p. 679; subsequently amended in Acts 1937, Ch. 259, § 1, p. 1229)

'No person who is 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 reckless disregard of the rights of others.'

Many states have similar statutes. The cases construing them are in irreconcilable conflict. Even when there is substantial agreement as to the law its application frequently results in incongruity. After reading many cases we have arrived at the following conclusions as to the principles governing the application of this statute to the facts stated in appellant's complaint.

The word 'guest' has more of social than business significance. The words 'without payment for such transportation' imply some valuable consideration for the ride. The presence of the person injured must have directly compensated the owner or operator in a substantial and material way. If the trip is primarily social, incidental benefits though monetary do not exclude the guest relationship. If the trip is primarily for business purposes and the one to be charged receives substantial benefit, though not payment in a strict sense, the guest relationship does not exist. Expectation of a material gain rather than social companionship must have motivated the owner or operator in inviting or permitting the other person to ride. The following extract from the dissenting opinion in Scholz v. Leuer, 1941, 7 Wash.2d 76, 95, 109 P.2d 294, 303, elaborates the thought:

'As indicated in the opinion of the majority, the mere rendition of benefits by a passenger is, of itself, insufficient to take one out of the 'guest' classification if the benefits are merely 'incidental to hospitality, companionship, or the like.' In resolving the question of benefits and the direction in which they flow, as well as their character and significance, a factor to be taken into consideration is the intention of the parties in entering upon the undertaking. If their actual and mutual purpose be to enter into a relationship other than that of host and guest, and their subsequent acts are not inconsistent with the intended relationship, the mere fact that in the performance of the undertaking the one party does nothing more than what a guest normally would do will not convert the relationship into one of host and guest.

'On the other hand, where the intended relationship is that of host and guest, the mere fact that benefits have been conferred upon the host will not change his legal status nor that of his guest. Thus, the motives which actuate the parties concerned constitute a primary consideration. Accordingly, when the 'benefit' rule is invoked, the transportation must have found its impulse in some mutual understanding from which the carrier has the right to obtain, or expect, some material benefit to himself.'

We do not consider the mere possibility of benefit sufficient to exclude the guest relationship. Some courts have said it must be 'tangible and direct.' The words imply reality, not potentiality. Courts should not be required to search for a benefit. If it is not apparent then it can hardly be said to be substantial or material.

In the light of these principles we examine the complaint. Appellee has undertaken to plead facts showing that Smedley was not a guest. This seems to be its burden for the act of riding in a car owned by another is consistent with several relationships with differing duties and the plaintiff ought to show upon which of them he relies. The first essential in a negligence action is to find a duty to exercise ordinary care. If no such duty exists there can be no recovery. So as a part of his general burden the plaintiff is required to show the facts upon which the duty arises. The cases incline to this view. Clendenning v. Simerman, 1935, 220 Iowa 739, 741, 263 N.W. 248, 249; Voelkl v. Latin, 1938, 58 Ohio App. 245, 16 N.E.2d 519; Smith v. Laflar, 1931, 137 Or. 230, 2 P.2d 18; Jenkins v. National Paint & Varnish Co., 1936, 17 Cal.App.2d 161, 61 P.2d 780. See 9 Blashfield, Cyclopedia of Automobile Law and Practice, Part 2, Perm.Ed., § 6146.

Of primary importance are the motives actuating the parties. These motives are stated in the sentence beginning: 'The purpose of said trip. * * *' What took place prior to the time when they 'met' is summarized in the conclusion which we think is one of fact, that the trip had as its purpose the selection of furniture in Chicago for a house which appellee was furnishing. We give no controlling force to the words 'mutual, definite and tangible benefit' for by the words 'in that' they are limited to such a benefit as is disclosed by the phrases which follow. The most that we can see in these phrases is that appellee desired the manager and interior decorator of a retail furniture store to help...