McMahon v. De Kraay
Decision Date | 10 November 1944 |
Docket Number | 8709. |
Parties | McMAHON v. DE KRAAY. |
Court | South Dakota Supreme Court |
Philip & Leedom and Tom Eastman, all of Rapid City, for appellant.
H F. Fellows, of Rapid City, for respondent.
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 prearrangement 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:
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 S.W.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 S.W.2d 538, and in Payne v. Fayetteville Mercantile Co., 202 Ark. 274, 150 S.W.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:
In Froman et al. v. J. R. Kelley Stave & Heading Co., 196 Ark. 808, 120 S.W.2d 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 Cal.2d 279, 70 P.2d 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 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:
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 N.W. 353, 354, the Florida statute which contains the words '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...
To continue reading
Request your trial-
Morse v. Walker
...the agreement will constitute such a 'payment for transportation' as will defeat the relationship of host and guest. McMahon v. De Kraay, 70 S.D. 180, 16 N.W.2d 308; Fortuna v. Sangster, 296 N.Y. 923, 73 N.E.2d Miller v. Fairley, 141 Ohio St. 327, 48 N.E.2d 217; Sprenger v. Braker, 71 Ohio ......
-
Jennings v. Hodges
...Basis for the latter is said to be the quotation from Duncan v. Hutchinson, 139 Ohio St. 185, 39 N.E.2d 140 quoted in McMahon v. DeKraay, 70 S.D. 180, 16 N.W.2d 308. This contention is further revealed by defendant's requested instruction which the trial court refused, requiring the objecti......
-
Peters v. Hoisington
... ... Picton, 66 S.D. 301, 282 N.W. 519; Forsling v. Mickelson, 66 ... S.D. 366, 283 N.W. 169; McMahon v. De Kraay, 70 S.D. 180, 16 ... N.W.2d 308. There is evidence that plaintiff made the trip at ... appellant's request, not for reasons of his own ... ...
- Larson v. Larson