Parker v. Leavitt

• Decision Date: 13 June 1960
• Docket Number: No. 5089,5089
• Citation: 201 Va. 919,114 S.E.2d 732
• Parties: THOMAS PARKER v. CHARLES H. LEAVITT, CITY SERGEANT OF THE CITY OF NORFOLK, ADMINISTRATOR OF THE ESTATE OF WILLIE DAVIS, DECEASED. Record
• Court: Virginia Supreme Court

Page 732

114 S.E.2d 732

201 Va. 919

THOMAS PARKER v. CHARLES H. LEAVITT, CITY SERGEANT OF THE CITY OF NORFOLK, ADMINISTRATOR OF THE ESTATE OF WILLIE DAVIS, DECEASED.

Record No. 5089.

Supreme Court of Appeals of Virginia

June 13, 1960.

Calvin W. Breit (Robert S. Cohen; Amato, Babalas, Breit & Cohen, on brief), for the plaintiff in error.

William L. Shapero (Maurice B. Shapero; Shapero & Shapero, on brief), for the defendant in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

This is an action instituted by Thomas Parker, plaintiff, against Charles H. Leavitt, City Sergeant of the City of Norfolk, Virginia, administrator of the estate of Willie Davis, deceased, to recover of the estate of the decedent damages for injuries received by the plaintiff in an automobile accident, which occurred while Davis was driving Parker's automobile, with Parker seated beside him. A jury returned a verdict in favor of the defendant on which verdict judgment was entered, and the plaintiff is here on a writ of error.

The principal and controlling question is whether Parker was, under the facts herein stated, a guest without payment for transportation within the meaning of § 8-646.1, Code of Virginia, 1950.

Code § 8-646.1 provides that:

'No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation and no personal representative of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the operation of such motor vehicle, unless such death or injury was caused or resulted from the gross negligence or wilful and wanton disregard of the safety of the person or property of the person being so transported on the part of such owner or operator.'

The following evidence was presented by witnesses introduced on behalf of the plaintiff:

The accident occurred on October 13, 1957, about 2:00 p.m., on Route 650, in Princess Anne County, Virginia. On that day, Willie Davis went to the home of Parker in South Norfolk, Virginia. Davis asked Parker to drive him in Parker's car to the home of Davis' employer, so that Davis could borrow some money from his employer to pay for the admission of Davis' aunt to a hospital. Parker said that he had recently suffered an injury to his groin and had been ordered by his doctor not to drive, and that he would, therefore, be unable to comply with Davis' request. Davis left, but returned about one-half hour later, and stated that he could find no one to transport him to his employer's home. He said to Parker: 'Probably one day you might have to have somebody to help you and if I could, I would do it.' Parker replied: 'I can't drive. How will I get you down there?' Davis said: 'I can drive the car.'

Parker said that while he had never ridden with Davis, he knew that the latter was used to driving a car, and 'I permitted him to drive if I went with him. I wouldn't permit him to have the car by himself.'

Leroy Williams, the brother-in-law of Parker, asked if he could go with Parker and Davis, and Parker agreed that he might do so. Davis proceeded to drive the car, with Parker seated to the right of him in the front seat, and Williams in the rear seat.

Parker said that Davis drove in a careful and proper manner until he came to a point near Robbins' Corner, in Princess Anne County, about 15 or 16 miles from the point where they started. Davis then increased the speed of the automobile from an estimated 40 miles per hour to an estimated 60 or 65 miles, and as a result the vehicle began 'to sway and zig-zag' from the road to its right shoulder. Parker warned Davis to slow down and bring the automobile under control. Davis, however, drove faster and traveled 490 feet off the road on the right shoulder, then back on the road, then across the road to the left shoulder, and then 144 feet into an oak tree on the left side of the road. The automobile was completely demolished, and Parker received serious and permanent injuries to his neck, back and shoulder. Davis died 17 days later on October 30, 1957.

Dr. C. O. Barclay, medical examiner for the city of Norfolk, said that the cause of Davis' death was 'a paralysis resulting from a subluxation of the fifth and sixth cerebral vertebrae in the neck.' The doctor performed no autopsy and made no other findings.

No witnesses were introduced on behalf of the defendant. Davis was dead, and we are told that there were no witnesses to the accident except the plaintiff and his brother-in-law, Williams.

At the conclusion of the evidence, the defendant moved to strike it on the ground that the plaintiff was a guest passenger, and no gross negligence had been shown on the part of the defendant. The motion was overruled, and the case submitted to the jury under instructions based on the theory that Parker was a guest without payment for his transportation.

In Boggs v. Plybon, 157 Va. 30, 160 S.E. 77, decided in 1931, we said that one who undertakes a duty gratuitously should be subjected to a lesser measure of obligation than one who enters upon such an obligation for pay. Accordingly, we held that a gratuitous guest in a motor vehicle must prove gross negligence in order to recover damages for injuries caused by the owner or operator of the car.

Code, § 8-646.1, enacted in 1938, Acts 1938, page 417, is a legislative codification of the gross negligence rule established in Boggs v. Plybon, supra. In interpreting the statute, we have heretofore, in a long line of cases, dealt only with the status of a passenger in a motor vehicle, which was being operated by the owner of the vehicle.

Here we are confronted with the question of the status of Parker, the owner-occupant of the car, which was being operated by his friend, Davis. In considering that question, it is well to bear in mind that it is expressly provided that either 'the owner or operator of any motor vehicle' may plead the statute as a defense.

Who is a guest within the meaning of § 8-646.1?

In Restatement, Torts, § 490, comment a, we find this definition:

'* * * 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 a part of the ordinary courtesies of the road.'

In Webster's New International Dictionary, Second Edition, a 'guest' is defined as follows:

'A person entertained in one's house or at one's table; a visitor entertained without pay; hence, a person to whom the hospitality of a home, club, etc., is extended.'

In 60 C.J.S., Motor Vehicles, § 399(5) a, page 1009, it is said that, in general:

'A guest, within the meaning of automobile guest statutes, is one who takes a ride in a motor vehicle driven by another, merely for his own pleasure or on his own business, and without making any return or conferring any benefit on the operator thereof; and the determination of whether a particular person is a guest depends on all the circumstances.'

In 5A Am. Jur., Automobiles and Highway Traffic, § 514, page 553, a 'guest' is defined as follows:

'A guest is one who is invited, either directly or by implication, to enjoy the hospitality of the driver, and who accepts such hospitality and takes a ride either for his own pleasure or on his own business, without making any return to or conferring any benefit upon the driver other than the mere pleasure of his company. A person riding in a motor vehicle is a guest if his carriage confers a benefit only upon himself and no benefit upon the owner or operator except such as is incidental to hospitality, social relations, companionship, or the like as a mere gratuity. However, if his carriage contributes such tangible and substantial benefits as to promote the mutual interests of both the passenger and the owner or operator, or is primarily for the attainment of some tangible and substantial objective or business purpose of the owner or operator, he is not a guest.'

For further definitions, see 2 Michie Jur., Automobiles, § 43, pages 500 et seq.; Annotation 82 A.L.R., pages 1365 et seq.; 95 A.L.R., pages 1181 et seq.; 27 Virginia Law Review, pages 559 et seq.; and XIII W. & L. Law Review, page 84.

There is little disagreement among the decisions as to the general principles governing the determination of so called guest statutes. Some of the decisions have had our statute under consideration.

In Lorch v. Eglin, 369 Pa. 314, 85 A.2d 841, Lorch, the owner of a motor car, was a passenger in his car, operated at his request by his friend, Eglin. In Virginia, south of Washington, D.C., their vehicle collided with another automobile, and Lorch, the owner of the car, was seriously injured. The trip was made by Lorch for pleasure, and for Eglin it was a business trip. Lorch agreed to pay for gas, oil and parking. In construing the Virginia guest statute, (§ 8-646.1) the Supreme Court of Pennsylvania held that Lorch was not a guest in his own car, and the Virginia statute could not be used in defense of the driver of the car. The court adopted the definition of 'guest' given in Restatement, Torts, § 490, comment a, and cited in support Gledhill v. Connecticut Company, 121 Conn. 102, 183 A. 379; and Anderson v. Burkardt, 275 N.Y. 281, 9 N.E.2d 929.

In Gledhill v. Connecticut Company, supra, it appears that Graham and his brother-in-law Gledhill, started on a fishing trip in a car owned by Gledhill, with Graham driving at the request of the owner....