Miller v. Ellis, Record No. 3359.
| Decision Date | 08 September 1948 |
| Docket Number | Record No. 3359. |
| Parties | RICHARD E. MILLER v. LEONARD ELLIS. |
| Court | Virginia Supreme Court |
Present, Hudgins, C.J., and Eggleston, Spratley, Buchanan, Staples and Miller, JJ.
1. AUTOMOBILES — Liability of Host to Guest — Relationship When Guest Undertakes to Drive. — When a guest undertakes to drive an automobile upon request of the host the benefit to the host is too trivial or inconsequential to change the relationship of the parties.
2. AUTOMOBILES — Liability of Host to Guest — Sufficiency of Evidence to Take Plaintiff Out of Status of Guest — Case at Bar. — The instant case was an action to recover for damages for personal injuries sustained by plaintiff while riding in a truck owned and operated by defendant. The evidence was sufficient to sustain a finding that defendant was guilty of ordinary negligence but did not show gross negligence. Plaintiff contended that the relationship was not that of host and guest but that there was a business relationship between him and defendant. Plaintiff undertook to assist defendant and another friend in helping move material in a truck. The offer to help was in the nature of rendition of neighborly assistance without expectation of personal benefit or compensation.
Held: That there was no merit in the contention. The offer by defendant to render neighborly assistance without expectation of personal benefit or compensation conclusively established the noncontractual nature of their relationship. The plaintiff was accepting a gratuity and riding as a mere guest.
Error to a judgment of the Circuit Court of the city of Martinsville. Hon. Kennon C. Whittle, judge presiding.
The opinion states the case.
Warren M. Shaw, for the plaintiff in error. C. P. Kearfott and C. M. Bradley, for the defendant in error.
This action was instituted by Richard E. Miler, hereinafter called plaintiff, against Leonard Ellis, hereinafter called defendant, to recover damages for personal injuries sustained by plaintiff while riding in a truck owned and operated by defendant.
Upon the trial, a verdict was returned for the plaintiff in the sum of $5,000. It was set aside by the trial court as contrary to law and without evidence to support it.
The sole assignment of error is the action of the court in setting aside the verdict and rendering judgment for defendant.
We are of opinion that the evidence is sufficient to sustain a finding that defendant was guilty of ordinary negligence which caused the plaintiff's injuries. It is, however, clear that gross negligence, which must be proved to support a recovery by a mere guest against his host, has not been established. Boggs Plybon, 157 Va. 30, 160 S.E. 77; Austin Austin, 186 Va. 382, 43 S.E.(2d) 31; Hill Bradley, 186 Va. 394, 43 S.E.(2d) 29, and sec. 2154(232) Code of Virginia, 1942 (Michie).
The question to be decided is: Did plaintiff occupy the status of a mere guest while riding in defendant's truck or was it such as to render defendant liable for failure to exercise ordinary care.
The facts and circumstances leading up to and obtaining at the time of the accident will be carefully considered and appraised to ascertain the relationship existing between the parties.
Briefly stated, in the light most favorable to plaintiff, they are as follows:
The plaintiff, defendant, and one Justin A. Kelly, all residents of Martinsville, Virginia, were friends. Defendant was the owner of a truck which he used in his work as a carpenter. He did not have a certificate or permit allowing the transportation of passengers or goods for compensation, and there is no evidence that he had previously used his truck for either purpose.
On Friday, October 11, 1946, while in the presence of each other, a conversation arose between these parties relative to moving a stove owned by Kelly to some location in Martinsville. Defendant, who had a holiday on Saturday, volunteered to transport it in his truck. Plaintiff had some personal effects consisting primarily of plumbing equipment which he desired to have moved from town to his new home a short distance out in the country. Some discussion then took place and defendant also offered to transport the plumbing equipment, etc., for plaintiff if he would help move Kelly's stove.
Plaintiff says that defendant's statement at that time was: "I have got to move a stove for Mr. Kelly early in the morning and if you will help me to move this stove then I will help you to move your furniture and your building material."
In pursuance of this conversation, defendant and Kelly drove toward Miller's house on Saturday morning and when nearly there, met him and the three then went to defendant's home. When they arrived there, plaintiff and Kelly accepted defendant's hospitality and partook of a drink of whiskey. From there they drove in defendant's truck, secured Kelly's stove and moved it to another place in town. Then then went back to defendant's home, took another drink, proceeded thence to plaintiff's house, loaded his plumbing equipment, etc., and then returned to defendant's home and partook of further refreshments.
It appears evident that no compensation was expected by defendant for his help and assistance to either Kelly or plaintiff. However, after the stove had been moved, Kelly offered to pay defendant. This offer was made in the presence of plaintiff but defendant declined to accept any compensation. At no time did plaintiff make such an offer.
They departed from defendant's home on this last occasion with the intention of driving to plaintiff's new residence outside of Martinsville and there unload his effects. plaintiff took his place in the rear of the truck where the goods were located. After proceeding several blocks at a moderate rate of speed and while making a right turn at an intersection, the truck struck the curb or an elevated part of the property line adjoining the street whereupon plaintiff and the plumbing equipment were thrown to the street and his injuries thereby sustained.
The evidence conclusively discloses that defendant did not have the legal right to use his truck for hire or to transport passengers for consideration. To do so would have been a violation of the statute. He received no compensation from Kelly and declined its offer in the presence of Miller. Defendant's testimony was definitely to the effect that the use of his truck and what he did was wholly gratuitous and done because of his friendship for the two parties. In this connection, he said that he was moving Kelly's stove "as an accommodation." He further testified with regard to moving plaintiff's equipment as follows:
There is no claim made by plaintiff that he intended to pay defendant for the use of his truck or for his personal assistance. The entire transaction bears every appearance and color of being merely neighborly acts among three friends.
Plaintiff, however, contends that the offer made by the defendant to move plaintiff's effects if he, plaintiff, would help move Kelly's stove constituted a contract and established a business relation between them.
The insufficiency of these circumstances to establish a contract of hire or a relation giving to plaintiff a status other than that of a mere guest is obvious. No benefit, pecuniary or otherwise, inured to the defendant out of any part of the entire transaction. His undertaking to assist both Kelly and Miller in what each wished to accomplish was solely voluntary and without consideration. At most his request to Miller for his help in moving Kelly's stove was a mere condition on which he, defendant, offered his personal help and truck to move plaintiff's effects. 1 Williston on Contracts, Revised Edition, sec. 112, pp. 378-383.
Plaintiff insists that the case of Garrett Hammack, 162 Va. 42, 173 S.E. 535, in which the court concluded that the evidence was sufficient to sustain a finding that the plaintiff was a passenger and not a mere guest is authority for his contention that he was not a mere guest and that defendant owed him the duty of exercising ordinary care. There plaintiff was injured while...
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