Manos v. James

• Decision Date: 06 March 1941
• Docket Number: 28031.
• Citation: 110 P.2d 887,7 Wn.2d 695
• Parties: MANOS v. JAMES.
• Court: Washington Supreme Court

110 P.2d 887

7 Wn.2d 695

MANOS v. JAMES.

No. 28031.

Supreme Court of Washington, En Banc.

March 6, 1941

Action by Sam Manos against Kenneth James for personal injuries. Judgment for plaintiff, and defendant appeals.

Affirmed.

ROBINSON C.J., and SIMPSON, JEFFERS, and STEINERT, JJ., dissenting.

Appeal from Superior Court, Spokane County; Chas W. Greenough, judge.

H. Earl Davis, of Spokane, for appellant.

Robertson & Smith and Joseph A. Albi, all of Spokane, for respondent.

DRIVER Justice.

Plaintiff brought this action to recover damages for personal injuries sustained while riding in an automobile owned and operated by the defendant. The complaint contained the following allegations relative to joint adventure:

'That on or about the 10th day of September, 1936, plaintiff and the defendant entered into an agreement constituting a joint venture whereby the defendant was to furnish an automobile and the plaintiff and defendant were to divide the expenses, including gas, oil, food and other incidentals, in connection with a trip which said parties were to take from Spokane, Washington, to Seattle, Washington.

'II. That in pursuance of said agreement defendant furnished a certain Zephyr Lincoln automobile, and the plaintiff, at the request of said defendant, purchased certain gas, oil and food on said trip.'

Other allegations of the complaint were to the effect that, as he was proceeding down Vantage hill grade, the defendant negligently drove his automobile at an excessive rate of speed, causing it to swerve to the right against a guardrail post, then back to the left and across the road against a pile of rocks on the hillside, thereby inflicting upon plaintiff the injuries which were the basis of his action. The answer denied these allegations of the complaint.

The trial to a jury resulted in a verdict for the plaintiff. Defendant's motions for non-suit, for directed verdict, for judgment notwithstanding the verdict, and for a new trial, were severally denied, and judgment was entered on the verdict. This appeal by the defendant followed.

Appellant assigns as error the denial of his motions Before and after judgment challenging the sufficiency of the evidence. He maintains that respondent failed to make a case for the jury on his claim of joint adventure, and, there being no evidence whatsoever of any intentional injury, the trial court should have held, as a matter of law, that respondent's action was barred by the host and guest statute, Laws of 1937, chapter 189, p. 911, § 121 (Rem.Rev.Stat. Vol. 7A, § 6360-121), which provides: 'No person transported by the owner or operator of a motor vehicle as an invited guest or licensee, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator: * * *.'

It should be stated at the outset that this case will be considered and determined on the theory presented by the pleadings and the trial court's instructions, which was that respondent must necessarily have been either (1) engaged in a joint adventure with appellant, or (2) an invited guest or licensee in appellant's automobile, without payment for transportation; and, in order to recover, respondent must prove that he came within the former category.

The determinative facts, as the jury could have found them from the evidence, may be stated as follows:

Appellant and respondent had been strangers until they chanced to meet in Spokane on September 7, 1936. Each then learned that the other wanted to go to Seattle, appellant with his wife for a vacation and respondent to resume his work as a bar tender in a Seattle tavern. According to the uncontradicted testimony of the respondent, the following conversation took place at this first meeting: 'Well, I was talking to a couple of friends of mine and James and his wife started talking and they heard me say I was going to Seattle, Washington, and he finally said he was going over to Seattle and he said, 'If you are going over there would you mind to ride over with me?' And I said, 'I don't know, maybe I will,' and he said, 'I will tell you, it will cost you cheaper if you go over with me'; that we would go half and half on the expense of gas and oil, and I said, 'Well, if that is the case it will be cheaper for me and I will go,' and I said, 'When do you figure on leaving?' and he said, 'I figure on leaving in a few days,' and it was on the 10th of September, in the morning, I couldn't tell the hour it was that he come over there and he said, 'Let's go to Seattle."

On cross examination, respondent testified relative to this conversation as follows:

'Q. Was that the time you made this so-called agreement to go to Seattle with him [appellant]? A. Yes, sir.

'Q. And you say he said he was going to Seattle and asked you to go along? A. Yes.

'Q. And he asked that you pay your share of the expenses? A. Yes.

'Q. Or was it that you heard he was going to Seattle and asked if you could go along? A. It was him that gave me the offer.

'Q. And when you accepted did you tell him you would pay part of the expenses? A. Yes.

'Q. What agreement did you have about this expense? A. Well, he told me if we go over, whatever we eat and the gas and the oil and everything until we get into Seattle, he says for me to pay it and when we get over there he will divide it.

'Q. How much did you and James figure it would cost to go to Seattle when you had this conversation with him? A. Not more than eight or ten dollars.

'Q. Did you have such a conversation with him? A. He said, 'I don't think it will cost more than eight or ten dollars to go over.''

There was also testimony to the effect that, at the time of this conversation, it had been further agreed that appellant and respondent would leave Spokane on the morning of September 10th, and the trip would be completed in one day without any over-night stop en route. Shortly Before noon of the appointed day, they started out on their prearranged journey, appellant driving his sedan and his wife and the respondent riding with him in the front seat, the luggage being carried on the rear seat. They stopped at a service station a few miles out of Spokane, where respondent bought gasoline and oil for the car, amounting to $6.35. He took a receipt for the purchase because appellant suggested, 'Keep track of what you spend and when we get to Seattle we can divide expenses.' At Soap Lake, they stopped and had lunch, for which respondent likewise paid. They then drove on through Quincy, and had started down the Vantage grade when the accident occurred substantially in the manner alleged in the complaint. The speed at which the appellant was driving when he lost control of his car was variously estimated by the witnesses to be from sixty to seventy-five miles an hour.

The first and principal question to be determined is whether, under the circumstances just related, the trial court was justified in submitting to the jury the issue of joint adventure.

In the case of Carboneau v. Peterson, 1 Wash.2d 347, 95 P.2d 1043, 1054, this court, after exhaustively analyzing its prior decisions, clearly and definitely re-stated the principles of joint adventure as follows: 'Briefly stated, a joint adventure arises out of, and must have its origin in, a contract, express or implied, in which the parties thereto agree to enter into an undertaking in the performance of which they have a common purpose and in the they have a common purpose and in the community of interest, and, further, a contract in which each of the parties has an equal right to a voice in the manner of its performance and an equal right of control over the agencies used in the performance. Thus, we note (1) a contract, (2) a common purpose, (3) a community of interest, (4) equal right to a voice, accompanied by an equal right of control.'

Applying these principles in the order stated in the Carboneau case to the facts of the case at bar, it seems apparent that appellant and respondent had intended to, and did, enter into a mutually binding contract, informal though it was, to jointly effect the transportation of their persons from Spokane to Seattle. This contract, which had been performed in part Before respondent's cause of action arose, was no mere understanding of the parties to accompany each other on some social excursion with an incidental arrangement to share expenses. Appellant and respondent, as strangers, had made a purely business deal with each other on the occasion of their very first meeting, and there is nothing in the record to indicate that the transaction had any social overtone whatsoever.

The common purpose which the parties had in their undertaking was to transport themselves from one place to another. In this purpose, and it might be said identified with it, they had a community of interest, because it was to their mutual advantage to be carried to their common destination; also, it would seem, they had, as a further common interest, their mutual purpose of making the journey expeditiously and with a material saving of expense to each of them. It is true that appellant and respondent had not intended to do the same things after their arrival in Seattle, but, under the circumstances, that is not a controlling factor. The undertaking of the parties, under the terms of their contract, was to travel to Seattle together in appellant's automobile. Upon their arrival in that city the contract would have been fully performed and the undertaking wholly accomplished. What the parties may have intended to do thereafter was entirely immaterial and could in no way have affected the...