McUne v. Fuqua

• Decision Date: 20 February 1953
• Docket Number: No. 32327,32327
• Citation: 42 Wn.2d 65,253 P.2d 632
• Parties: McUNE, v. FUQUA.
• Court: Washington Supreme Court

Page 65

42 Wn.2d 65

253 P.2d 632

McUNE, v. FUQUA.

No. 32327

Supreme Court of Washington, Department 2.

Feb. 20, 1953.

Rehearing Granted April 14, 1953.

As Modified on Rehearing June 1, 1953, 257 P.2d 636.

Elery A. Van Diest, Tonkoff & Holst and Blaine Hopp, Jr., Yakima, for appellant.

Kenneth C. Hawkins and Milton P. Sackmann, Yakima, for respondent.

HAMLEY, Justice.

Merle McUne brought this action against Al Fuqua to recover damages sustained in an automobile accident while plaintiff was riding as a passenger in defendant's car.

The case was tried to a jury which returned a verdict for plaintiff in the sum of $21,400. The trial court thereafter granted defendant's motion for judgment n. o. v. The court also granted defendant's alternative motion for a new trial, effective only if the order granting judgment n. o. v. should be reversed. Judgment was entered accordingly, and plaintiff appeals.

Appellant's first assignments of error relate to the granting of judgment n. o. v., and call for a consideration of the host-guest statute, RCW 46.08.080, Rem.Rev.Stat. Vol. 7A, § 6360-121. This statute reads as follows:

'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 the accident was intentional on the part of the owner or operator: Provided, That this section shall not relieve any owner or operator of a motor vehicle from liability while it is being demonstrated to a prospective purchaser.'

Specifically, the question presented is whether the trial court erred in holding, as a matter of law, that there had not been payment for the transportation. Appellant argues that, under the evidence, this question was properly left to the jury, and that the court erred in rejecting the jury's finding, and deciding the question to the contrary as a matter of law.

The testimony shows that McUne was a rancher in the Selah district near Yakima, Washington. Fuqua was a building inspector employed by the city of Yakima. The two had been friends for many years, and were active together in bowling tournaments and as members of the drill team of the Yakima aerie of the Eagles lodge.

It had been the custom of the Yakima aerie to send this drill team to the state conventions of the Eagles lodge wherever they might be held. On such occasions the aerie paid the members of the drill team a per diem while away from Yakima and five cents a mile as travel expense. The 1951 convention of this lodge was held in Hoquiam, Washington. For the purpose of attending this convention, the members of the drill team planned to form a caravan of about ten cars at a designated point on the outskirts of Yakima, and from there proceed to Hoquiam.

On the evening prior to this trip, McUne and Fuqua agreed that Fuqua would take his car on this trip, and that McUne would ride with Fuqua, at least on the trip over. McUne desired the ride, as his wife wanted his car. He told Fuqua, however, that Mrs. McUne might come over to Hoquiam and bring him back to Yakima when the convention was over. Both parties testified that they agreed at this time that McUne would buy the gasoline for half the round trip.

In accordance with these arrangements, Fuqua called for McUne at the latter's home early the next morning. They joined the caravan as planned. The accident occurred after they had traveled a few miles on the Chinook Pass highway. The collision disabled Fuqua's car, but both men continued on to Hoquiam in other automobiles. Fuqua returned to Yakima in McUne's car, which Mrs. McUne had driven to Hoquiam.

McUne did not actually pay for any gasoline used in Fuqua's car on this trip. The evidence indicated it to be the custom, on such trips, for the passenger to pay for the gasoline at the time when it was purchased along the route. Fuqua started out with a full tank of gasoline that morning, and had not made any stops for service prior to the accident.

There was testimony to the effect that on two or more previous bowling and drill team trips together within the year or so prior to the accident, McUne and Fuqua had alternated in providing the car, the passenger in each case paying for the gasoline. There was also evidence tending to show that this was the custom generally followed by members of the drill team. On this particular trip, members of the drill team each received $52.50 from the Yakima aerie, this sum representing the per diem and mileage travel expense allowance.

On this evidence and other evidence of similar import, the trial court concluded that the purpose of the trip in question was social, and was not of a business nature or to secure an advantage in a material or business sense. This being so, the court held that the promise to pay for gasoline used on the trip did not constitute 'payment' as that term is used in the statute. Since this left appellant in the position of an invited guest or licensee 'without payment,' the trial court was necessarily led to conclude that appellant's action was barred by the statute.

The requirements necessary to constitute payment for transportation such as to avoid the bar of our statute were specifically delineated in Fuller v. Tucker, 4 Wash.2d 426, 103 P.2d 1086. The two requirements, as there stated, are as follows: (1) an actual or potential benefit in a material or business sense resulting or to result to the owner; and (2) that the transportation be motivated by the expectation of such benefit. This first requirement was amplified in Scholz v. Leuer, 7 Wash.2d 76, 109 P.2d 294, quoted with approval in Hayes v. Brower, 39 Wash.2d 372, 235 P.2d 482, 235 P.2d 482, 490, 25 A.L.R.2d 1431, where we said:

'* * * If there is payment for the transportation, the statute does not apply, and this does not mean that payment must necessarily be made in money. It is sufficient if the presence of the occupant directly compensates the operator or owner in a substantial and material or business sense, as distinguished from mere social benefit or nominal or incidental contribution to expenses.' 7 Wash.2d at page 84, 109 P.2d at page 298.

In cases where the trip was for social purposes only, and there was no showing that the passenger had contributed to the expenses of the trip, our court has held, under the facts shown, that the presence of the passenger did not constitute an actual or potential benefit to the driver in a material or business sense. Syverson v. Berg, 194 Wash. 86, 77 P.2d 382; Fuller v. Tucker, supra. But where it has been shown that the passenger contributed, or promised to contribute, to the actual expenses of the trip, then, notwithstanding the fact that the trip was solely for social purposes, we have held that it is for the trier of the facts to find whether such contribution constitutes an actual or potential benefit in a material or business sense. See Potter v. Juarez, 189 Wash. 476, 66 P.2d 290; Pence v. Berry, 13 Wash.2d 564, 125 P.2d 645.

In the instant case the payment for the gasoline on half the journey would relieve the driver of a substantial expense which he would otherwise have incurred. The jury, in our opinion, was therefore entitled to find, as it did find, that the agreement to pay for the gasoline was an actual or potential benefit to the driver in a material or business sense, notwithstanding the fact that the trip was for a social purpose.

Respondent further contends, however, that there was no basis in the evidence for a finding that the transportation was motivated by the expectation of such benefit. This has reference to the second requirement necessary to establish 'payment for transportation,' as set out in Fuller v. Tucker, supra.

This requirement does not mean that the taking of the trip must be motivated by the expectation of receiving the benefit. It need only be shown that the furnishing of transportation to the passenger was motivated by such expectation. Nor does it mean that the expectation of receiving the benefit must be the sole motivating factor in furnishing transportation to the passenger. It is sufficient, we believe, if such expectation is shown to be a substantial factor. See Hayes v. Brower, 39 Wash.2d 372, 385, 235 P.2d 482, 25 A.L.R.2d 1431. See, also, the analysis of the host-guest statute and review of past decisions of this court by Professor Richards, in 24 Wash.L.Rev. 101, 103.

In contending that motivation was not shown, but was, in fact, expressly negatived, respondent relies upon his testimony on recross-examination, as follows:

'Q. Mr. Fuqua, when you made your arrangement with Mr. McUne to take him on this particular trip, was the fact that he stated to you that he would buy the gas, is that fact the thing that caused you to furnish him that transportation? A. Not necessarily.

'Q. Well, just answer the question: Was it or was it not? A. No, I don't think so.

'Q. It wasn't? It wasn't? A. No.'

The jury, of course, was not bound by this testimony. Were the rule otherwise, the defendant in such a suit would always have it in his power to defeat the action by disclaiming motivation. The credibility of witnesses and the weight to be given to their testimony is for the jury. Kelly v. Drumheller, 150 Wash. 185, 272 P. 731. Where, as here, the testimony comes from respondent himself, the jury has the right to discount his disavowal of motivation, and, if there is evidence to the contrary, find that the expectation of receiving a benefit was a substantial motivating factor.

Considering all of the evidence relative to this transaction, as reviewed above, we believe that there was substantial evidence in support of the jury's finding as to motivation. Respondent himself, after denying such motivation as above noted, later testifed on redirect examination as follows:

'Q. Well, you said a while ago that it wasn't...