McMahon v. DeKraay

• Decision Date: 10 November 1944
• Docket Number: 8709
• Citation: 70 S.D. 181,16 N.W.2d 308
• Parties: KATHRYN McMAHON, Respondent, v. PEARL DeKRAAY, Appellant.
• Court: South Dakota Supreme Court

70 SD 181, 16 NW2d 308 (1944)

KATHRYN McMAHON,

Respondent,

v. PEARL DeKRAAY,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. Turner M. Rudesill, Judge

#8709—Affirmed

Tom Eastman, Philip & Leedom, Rapid City, SD

Attorneys for Appellant.

H. F. Fellows, Rapid City, SD

Attorney for Respondent.

Opinion Filed Nov 10, 1944

POLLEY, Judge.

In this action the plaintiff sought and recovered judgment against the defendant for damages for personal injuries received in the state of Arkansas by reason of the alleged negligence of defendant. Predicated upon the adverse ruling of the trial court upon her motions for a directed verdict and for judgment n.o.v., the defendant raises two questions for decision; viz.: (1) Was recovery by plaintiff precluded by the Arkansas guest statute, and (2) Is the evidence sufficient to support a finding of negligence? That these questions arise under the law of Arkansas, and that the evidence must be considered in the light most favorable to plaintiff is conceded.

The question to be decided is whether, as a matter of law, under evidenced circumstances the sharing by plaintiff of the outlay for gasoline, oil, etc., pursuant to pre-arrangement, excluded her from the classification created by the statutory words “guest” or guest, “without payment for such transportation.” Sections 1302, 1303, and 1304, Pope’s Digest, read as follows:

“Section 1302. Action by guest in automotive vehicle prohibited when. That no person transported as a guest in any automotive vehicle upon the public highways of this State shall have a cause of action against the owner or operator of such vehicle for damages on account of any injury, death or loss occasioned by the operation of such automotive vehicle unless such vehicle was wilfully and wantonly operated in disregard of the rights of others.

Section 1303. Guest defined. The term guest as used in this Act shall mean self-invited guest or guest at sufferance.

Section 1304. No Cause of action by person riding in motor vehicle as a guest. No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, without payment for such transportation, nor the husband, widow, executors, administrators or next of kin of such person, shall have a cause of action for damages against such owner or operator, or other persons responsible for the operation of such car, for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicle, unless such injury shall have been caused by the willful misconduct of such owner or operator. And in no event shall any person related by blood or marriage within the third degree of consanguinity or affinity to such owner or operator, or the husband, widow, legal representative, or heirs of such person, have a cause of action for personal injury, including death resulting therefrom, against such owner or operator while in, entering, or leaving such motor vehicle, provided this Act shall not apply to public carriers.”

Although the decisions of the Arkansas court supply us with a broad interpretation of these statutes, much to our regret, such of its decisions as have come to our attention do not clearly and conclusively rule the issue which confronts us. In Ward v. George, 195 Ark. 216, 112 SW 2d 30, 33, it was written: “The statute, of course, has no application to passengers who pay for their transportation.” In that case, and in Arkansas Valley Cooperative Rural Electric Co. et al. v. Elkins, 200 Ark. 883, 141 SW 2d 538, and in Payne v. Fayetteville Mercantile Co., 202 Ark. 274, 150 SW 2d 966, that court subscribed to the test of who are guests contained in § 2292 of Blashfield’s Cyclopedia of Automobile Law and Practice, vol. 4, Perm. Ed., as follows:

“One important element in determining whether a person is a guest within the meaning and limitations of such statutes is the identity of the person or persons advantaged by the carriage. If, in its direct operation, it confers a benefit only on the person to whom the ride is given, and no benefits, other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes; but, if his carriage tends to the promotion of mutual interests of both himself and the driver and operates for their common benefit or if it is primarily for the attainment of some objective or purpose of the operator, he is not a guest within the meaning of such enactments. Of course, a passenger for hire is not within their operation, regardless of whether the passenger or some one else pays or promises to pay for the transportation.”

In Froman et al. v. J. R. Kelley Stave & Heading Co., 196 Ark. 808, 120 SW2d 164, it was decided that mere vague conversation about sharing expenses indulged in by host and guest after the trip is underway is not enough to exclude one from the statutory guest class.

Without attempting a complete review of the authorities, we turn for aid to the adjudications of other states which interpret similar statutes.

In McCann v. Hoffman, 9 Cal2d 279, 70 P2d 909, 911, under a statute defining a guest as one who “accepted a ride without giving compensation therefor,” the evidence described a pleasure trip by two couples in the car owned by the one couple, under an unexpressed mutual understanding that the expenses would be shared. In holding the injured party a guest the court said:

“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 without such exchange would be a guest, and consequently is not payment for the transportation or compensation within the meaning of the statute. It is obvious that if a different result obtained under any construction of the statute its purposes would be defeated and its effect annulled. The relationships which will give rise to the status of a passenger must confer a benefit of a tangible nature and are limited. ...

Therefore, where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given. But it is not given where the main purpose of the trip is the joint pleasure of the participants. The payment of a portion of the expense, as for gasoline and oil consumed on the trip, is merely incidental and does not constitute the moving influence for the transportation. The provocation for the offer of transportation remains the joint social one of reciprocal hospitality or pleasure.”

The foregoing language is urged by the defendant in his argument for reversal. In response, plaintiff quotes from the Restatement of the Law of Torts, § 490, as follows:

“The phrase ‘passenger in a vehicle’ is used to denote the fact that the plaintiff is one who is being carried by another for hire. The word ‘guest’ is used to denote one whom the owner or possessor of a motor car or other vehicle invites or permits to ride with him as a gratuity, that is, without any financial return except such slight benefits as it is customary to extend as part of the ordinary courtesies of the road. Thus, one who rides in another’s car does not cease to be a guest by paying the bridge or ferry tolls which it is the local custom for a guest to pay. On the other hand, if there is a prior arrangement that there shall be a substantial sharing of the expenses, the host and guest relation does not exist; the person so sharing expenses may be either a passenger or a participant.”

In support of this text plaintiff directs us to a number of cases, to some of which we make reference.

In Teders v. Rothermel, 205 Minn. 470, 286 NW 353, 354, the Florida statute which contains the word “guest” ... without payment for such transportation,” was presented for interpretation, in a case involving a trip to that state from Nebraska under a previous agreement to share expenses. In that case the court said:

“2. To be within its reach the rider in the car of another must not only be ‘guest or passenger’, but also riding ‘without payment for such transportation’. It is significant that the thing determinative is not ‘hire’ or ‘compensation’, but ‘payment’. ‘Compensation’, accurately used, means payment in money, or other benefit, which will compensate in the strict sense, that is, make even, or be measurably the equivalent of that for which it is given. Kerstetter v. Elfman, [supra]. ‘Hire’ might apply only where both machine and driver are hired for the occasion.

The words of the Florida law can properly be given no such narrow scope. Payment is all that is required. The amount of money...