Nogosek v. Truedner, 34920

• Decision Date: 15 October 1959
• Docket Number: No. 34920,34920
• Citation: 54 Wn.2d 906,344 P.2d 1028
• Parties: Cecelia NOGOSEK, Appellant, v. William G. TRUEDNER and Gladys Truedner, his wife, Respondents.
• Court: Washington Supreme Court

Page 906

54 Wn.2d 906

344 P.2d 1028

Cecelia NOGOSEK, Appellant, v. William G. TRUEDNER and Gladys Truedner, his wife, Respondents.

No. 34920.

Supreme Court of Washington, En Banc.

Oct. 15, 1959.

Merges & Brain, Eugene D. Zelensky, Seattle, for appellant.

Leo M. Koenigsberg, Robert J. Allerdice, Seattle, for respondents.

Paine, Lowe, Coffin & Herman, Eldon H. Reiley, Spokane, amici curiae.

HUNTER, Judge.

This is an appeal from a judgment entered on a jury verdict in favor of the defendants, in an action brought by the passenger of an automobile against the driver and her husband for personal injuries resulting from a head-on automobile collision August 16, 1956, about four miles south of Mount Vernon, Washington, on state highway No. 99.

Plaintiff Cecelia Nogosek and defendant Gladys Truedner (hereafter referred to as the sole defendant) were good friends, both residing in Seattle. Prior to the accident in question, the plaintiff arranged with the defendant to accompany her on a trip to Vancouver, British Columbia, to pick up defendant's niece. The testimony is in dispute as to details of the arrangement but it was plaintiff's version that she agreed to help share expenses of the trip if it was made on her day off. The trip was made accordingly but no money was paid to the defendant in advance. Returning from Vancouver in the late afternoon, they stopped at Blaine, Washington, where the plaintiff purchased a 'fifth' of whiskey. She imbibed frequently from thereon to the scene of the accident, which occurred about six-thirty that evening (August 16, 1956), at which time, according to the defendant's testimony, the plaintiff was intoxicated, and talked in a loud and incoherent manner. Defendant admitted she (defendant) consumed two drinks. The defendant further testified that while driving on a straight stretch of road, at a speed of approximately fifty miles per hour, she started to pass a car going in the same direction; that at that time she observed an approaching car about four blocks away; that when the front end of her car was in a position parallel with the back end of the car she was passing, the plaintiff, who was sitting in the front seat next to the niece, made a terrifying scream. In the defendant's words: '* * * she frightened me half to death and I looked over at her and automatically slammed on the brakes. * * *' Defendant thereupon lost control of the car which careened from one side of the road to the other until she was struck by the approaching automobile. Plaintiff sustained severe injuries and had no recollection of what happened on the day of the accident and for serveral weeks thereafter.

In addition to a verdict for the defendant, the jury brought in answers to the following special interrogatories submitted by the court:

'Interrogatory No. 1:

'Was the defendant Gladys Truedner negligent?

'Answer: Yes ('Yes' or 'No')

'Interrogatory No. 2:

'Was the plaintiff Cecelia Nogosek contributorily negligent?

'Answer: No ('Yes' or 'No')

'Interrogatory No. 3:

'Was there payment or an agreement to pay for transportation between plaintiff Cecelia Nogosek and defendant Gladys Truedner?

'Answer: Yes ('Yes' or 'No')

'Interrogatory No. 4:

'Was the expectation of receiving payment one of the motivating factors for defendant Gladys Truedner furnishing the transportation at the time in question?

'Answer: No. ('Yes' or 'No')'

The plaintiff appeals.

Appellant contends that the answers to interrogatories Nos. 1, 2 and 3, are inconsistent with the general verdict for the respondent and that she is entitled to a new trial on the issue of damages only.

Appellant argues that, in answering interrogatory No. 3, the jury actually answers interrogatory No. 4; that the latter is merely surplusage; that the court defined payment by instruction No. 12, and that the finding of payment by the jury under this definition, by its answer to interrogatory No. 3, was sufficient to remove this case from the purview of our 1937 host-guest statute, RCW 46.08.080.

That part of instruction No. 12 referred to by the appellant reads as follows:

"Payment for such transportation' means an actual or potential benefit in a material or business sense to the owner or driver of the car, as distinguished from a mere social benefit, expression of neighborliness between the parties or incident contribution.

'Such payment does not necessarily have to be in money. Although actual payment need not have been made before the happening of an accident, the agreement for payment, if any, must precede the accident.

'Furthermore, the expectation of such payment, if any, must be a motivating factor in the furnishing of the transportation at the time in question.

'Considering the foregoing factors, you are to determine whether the plaintiff made payment for her transportation or had an agreement for same in such payment or agreement for same was a motivating factor in the furnishing of the transportation at the time in question or whether she was an invited guest.' (Italics ours.)

The appellant argues that since the jury found payment or a promise to pay as it did when it answered interrogatory No. 3 in the affirmative, it must also have found a benefit in a business sense to include motivation, in the light of the above definition of payment which it was required to follow by this instruction. We disagree. The instruction read in its entirety correctly states the rule essential to the establishment of the business relationship between the driver of a car and a passenger, sufficient to avoid the bar of the host-guest statute. The instruction contains the two requirements essential to the establishment of this relationship as set forth in Fuller v. Tucker, 1940, 4 Wash.2d 426, 103 P.2d 1086, 1088, wherein we said:

'The question presented in the case at bar is foreclosed by our opinion in Syverson v. Berg, supra [194 Wash. 86, 77 P.2d 382]. In that case, we held that, to take a person riding with another out of the guest class--show 'payment for such transportation' (sec. 1, Ch. 18, Laws of 1933)--two requirements are necessary: (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...