Pence v. Berry

• Decision Date: 14 May 1942
• Docket Number: 28566.
• Citation: 13 Wn.2d 564,125 P.2d 645
• Parties: PENCE et ux. v. BERRY.
• Court: Washington Supreme Court

125 P.2d 645

13 Wn.2d 564

PENCE et ux. v. BERRY.

No. 28566.

Supreme Court of Washington

May 14, 1942

Department 1.

Suit by Carl C. Pence and Margaret R. Pence, husband and wife against E. C. Berry, for injuries sustained by the plaintiff wife while riding in an automobile owned and operated by the defendant. From a judgment in favor of plaintiffs, defendant appeals.

Judgment affirmed.

Appeal from Superior Court, Spokane County; R. M Webster, judge.

Post Russell, Davis & Paine, of Spokane, for appellant.

R. E Lowe and Clare E. Turner, both of Spokane, for respondents.

STEINERT Justice.

Plaintiffs brought suit to recover damages for injuries sustained by the plaintiff wife while riding in an automobile owned and operated by defendant. At the close of plaintiffs' case, defendant challenged the sufficiency of the evidence and moved for judgment in his favor, but the motion was denied. At the conclusion of all the evidence, defendant renewed his challenge and motion, with the same result. The jury returned a verdict for plaintiffs, and thereafter defendant's motion for judgment notwithstanding the verdict was denied by the court. Judgment was thereupon entered on the verdict, and the defendant has appealed.

The facts which the jury was entitled to find from the evidence are as follows: At the time of the events herein narrated, appellant Berry owned and conducted a restaurant in Spokane. Eugene Kirk, who was employed in the office of a wholesale grocery concern in the same city, had been a patron and a personal friend of appellant for ten or eleven years, and the two of them had, upon several occasions, attended football games together. Kirk and his wife were also friends and neighbors of the respondents, Mr. and Mrs. Pence, and these two families had likewise attended football games together in former years. On the contrary, appellant had never met Mr. or Mrs. Pence prior to the day of the accident here involved.

Some time Before October 19, 1940, the appellant and Eugene Kirk had made tentative arrangements to drive together to Pullman, Washington, and there attend a State College of Washington football game to be played on that day. After agreeing to this, however, Kirk recalled that he had previously made a similar arrangement with respondents. In his embarrassment at having agreed to go with two different parties, Kirk confided his dilemma to appellant, and the latter thereupon suggested that all three of them, and their wives, drive to Pullman together, in his car. Kirk and the appellant also discussed the matter of the expenses of the trip, including the cost of meals, tickets to the game, and oil and gas for the car, and it was estimated that the amount necessary to pay all expenses of the journey would not in any event exceed the sum of ten dollars for each couple. Appellant was concerned about the amount of the probable expense to him because, as he stated on cross-examination, if the trip were to cost too much he could not afford to go, inasmuch as he would have the additional expense of hiring two or three people to take the places of himself and his wife at the restaurant during their absence.

Kirk and appellant finally agreed, a short time Before the day of the game, that appellant was to take his car and was to provide a lunch, except for coffee, which was to be supplied by Mrs. Kirk; that Pence and Kirk should contribute to appellant their proportionate shares of the expense of the lunch and of operating the car; and that Kirk should procure the tickets to the game, for which Berry and Pence would later reimburse him. At this time, however, Pence had not yet been consulted with reference to the proposed plan. Kirk therefore suggested to appellant that he would get in touch with Pence and ascertain whether the arrangement was agreeable with him. Kirk thereafter communicated to Pence the substance of his conversation with appellant, and Pence expressed his approval of the arrangement 'providing that the expenses would be prorated.' Kirk reported Pence's answer to appellant, and the arrangements proceeded forward on the basis of such an agreement for the sharing of expenses.

On the morning of October 19th appellant and his wife, with their car, called for Mr. and Mrs. Kirk and then drove to the home of the respondents, where Mr. and Mrs. Berry met Mr. and Mrs. Pence for the first time. The party of six then started for Pullman. Appellant did the driving, although it had been agreed that morning that he and Kirk would take turns at the wheel.

Shortly after leaving Spokane, the matter of expenses was discussed among the group, and it was understood that Kirk and Pence would each pay appellant two dollars and fifty cents, or thereabouts, to help defray the expense incurred by him, although settlement was to be deferred until after the game, when it could be better determined whether any additional expenditures would be necessary. Kirk was likewise to be reimbursed for the tickets he had purchased for Pence and Berry.

Pursuant to his arrangements with Kirk, appellant had brought a lunch, including even the coffee which Mrs. Kirk had agreed to provide but had been unable to prepare. Arriving in Pullman, the party ate a portion of the lunch and then repaired to the stadium to witness the game. At its conclusion, at about 5 p.m., they returned to the parked car and, while waiting for the crowd to disperse, ate the remainder of the lunch. After some discussion, they concluded to drive to Moscow, Idaho, for dinner, instead of returning directly to Spokane. A few miles outside of Pullman, the car skidded off the road and turned over when appellant suddenly applied his brakes, and Mrs. Pence was seriously injured. Two or three days later, Mr. Pence offered to pay appellant two dollars and fifty cents as his share of the expenses incurred by appellant, but the latter declined to accept the money because of the expenses which respondents themselves had incurred in the meantime by reason of the accident.

There is no dispute on this appeal as to the negligence of appellant, who was driving the car at the time, nor as to the amount of damages suffered by respondents. The only question involved here is whether or not respondents' claim comes within the prohibition of Rem.Rev.Stat. Vol. 7A, § 6360-121, commonly known as the automobile guest statute, which provides: '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 such accident shall have been intentional on the part of said owner or operator * * *.' The question to be here determined may be considered from two points of view: (1) Whether the facts in this case establish, as a...