Rainsbarger v. Shepherd

• Decision Date: 13 November 1962
• Docket Number: No. 50740,50740
• Parties: , 1 A.L.R.3d 1074 Mary RAINSBARGER, Appellee, v. Thomas R. SHEPHERD, Appellant.
• Court: Iowa Supreme Court

Page 41

118 N.W.2d 41

254 Iowa 486, 1 A.L.R.3d 1074

Mary RAINSBARGER, Appellee, v. Thomas R. SHEPHERD, Appellant.

No. 50740.

Supreme Court of Iowa.

Nov. 13, 1962.

Ned P. Gilbert, Oskaloosa, for appellant.

Heslinga & Heslinga, Oskaloosa, for appellee.

MOORE, Justice.

Only plaintiff testified as to events of the accident on March 11, 1961 when she received serious injuries. Plaintiff was born and always lived on a farm in Mahaska County where the accident happened. From 1930 defendant had lived at plaintiff's home. She took him in at age 14 and testified, 'I was just like a mother to him'. On many prior occasions they went in defendant's car to visit plaintiff's nephew. They planned such a trip on March 11. Defendant went to the garage and drove his car near the yard gate where he generally picked up the plaintiff. The car was stopped with the right seat near the gate. Plaintiff walked from the house through the gate, opened the right car door, pushed it back until it caught so as to enter the automobile, and had her hand on the car door when the car started in reverse. She was knocked down and crushed between the lower edge of the door and the ground. As plaintiff opened the door defendant was checking the outside lights of his car which was 'tolerably new to him'. He was not looking at her when she attempted to enter the car. Defendant's answer admits he was operating his car at the time of the accident.

After overruling defendant's motion for a directed verdict, the trial court submitted the case on the elements of an ordinary negligence case as alleged in plaintiff's petition. The jury returned a verdict for plaintiff. From a judgment thereon defendant has appealed.

Defendant assigns but one error. He contends he was entitled to a directed verdict as plaintiff was a guest when she attempted to enter his automobile and that recovery is barred for ordinary negligence under the provisions of section 321.494, Iowa Code, I.C.A. It provides:

'Guest statute. The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle.'

Innumerable opinions have been written by this court and those of other jurisdictions construing and interpreting the meaning of guest statutes. The holdings of the courts are not in agreement as to when the status of host and guest is established or ceases. Many of the cases on the subject are collected in the annotation in 50 A.L.R.2d 974, where a variety of holdings will be found.

The trial court's ruling referred to Smith v. Pope, 53 Cal.App.2d 43, 127 P.2d 292; Boyd v. Cress, 46 Cal.2d 164, 293 P.2d 37, and three Iowa cases.

In Smith v. Pope, supra, plaintiff had hold of the car door in process of entering defendant's car to go to a social event and was injured when defendant's foot slipped off brake pedal resulting in a movement of the car and plaintiff being thrown to the ground. The court held plaintiff was not then a guest as the California statute contained the phrase 'during such ride'. In Boyd v. Cress, supra, plaintiff was injured when defendant's car rolled back and he was struck by the car door while attempting to re-enter defendant's car. After citing other California cases the court said:

'This consistent line of authority establishes the rule that the protection of the guest statute extends only to injuries suffered 'during such ride' in the sense that the plaintiff remained in or upon the vehicle at the time of the accident.'

The California cases state a strict rule of construction is followed in construing their guest statute. These cases are of little value as we apply a rule of liberal construction.

In Clinger v. Duncan, 166 Ohio St. 216, 141 N.E.2d 156, a divided court of four to three held plaintiff was not a guest when injured when she attempted to re-enter defendant's automobile to resume their trip to a social event. The Ohio guest statute included 'while being transported'. That court follows a rule of strict construction of the guest statute.

In Nemoitin v. Berger, 111 Conn. 88, 149 A. 233, defendant invited plaintiff to ride home from the beach in defendant's automobile. Plaintiff took his seat beside the defendant. Defendant reached over and closed the car door. Two fingers of the plaintiff were caught between the rear part of the door and the jamb and severely injured. The court held plaintiff was a guest and said:

'The statute provides that no person 'transported by the owner or operator of a motor vehicle as his guest' without payment shall be entitled to recover for an injury except in accordance with its terms. When the plaintiff entered the car to take his place for the purpose of immediate transportation he came within the purview of the statute; he had then put himself under the care of the defendant, and his actual relationship as guest toward the defendant had begun; and that the automobile had not started to move is not a controlling circumstance.'

The facts in Kaplan v. Taub, Fla.App., 104 So.2d 882, are much like the case at bar. Plaintiff in that case had accepted defendant's invitation to ride in defendant's car. Plaintiff had her hand on the handle of an open front door and was about to enter the front seat when defendant released the brake causing the car to be propelled backward knocking plaintiff to the sidewalk. The Florida guest statute says 'being transported'. The court held plaintiff was a guest when injured. At page 884 of 104 So.2d, the court said:

'The real test of which is to determine whether a gratuitous undertaking of the automobile operator had begun when the injury occurred. Illustrative of the application of the test and factually in point is the case of Head v. Morton, 1939, 302 Mass. 273, 19 N.E.2d 22, 25. * * * The appellant had her hand on the door of appellee's automobile as an act preparatory to entering the vehicle. The appellee was at the steering wheel of his vehicle awaiting the appellant's entry therein and that his act of releasing the brake and starting the automobile was in furtherance of his prior gratuitous undertaking.'

In Castle v. McKeown, 327 Mich. 518, 42 N.W.2d 733, plaintiff had opened the car door to re-enter the vehicle. Plaintiff had one foot on running board and the other on the ground when the car suddenly moved. After observing the purpose of the guest statute the court held she was a guest when injured. In Marth v. Hogeboom, 167 Kan. 349, 205 P.2d 1190, the guest alighted from the car and took hold of the door handle to close it when the car started up causing plaintiff's injuries. The court held she was still a guest. The Kansas court said:

'We think every case of this character must of necessity be decided upon its own peculiar facts. * * * It seems to us it would be drawing too fine a distinction to say if the negligent act of the driver occurred after the car had stopped and while the guest was endeavoring to open the door from the inside, the negligence occurred in the course of the gratuitous undertaking but if the negligent act occurred while the guest was endeavoring to close the door from the outside then the negligence did not occur in the course of the gratuitous undertaking. The closing of the door was the natural, the normal act culminating the gratuitous undertaking. The alleged negligence occurred while that act was in progress.'

For similar holdings see Hobbs v. Irwin, 60 N.M. 479, 292 P.2d 779; LaRue v. Hoffman, Fla.App., 109 So.2d 373; Ethier v. Audette, 307 Mass. 111, 29 N.E.2d 707; Head v. Morton, 302 Mass. 273, 19 N.E.2d 22.

In Tallios v. Tallios, 350 Ill.App. 299, 112 N.E.2d 723, the truck in which plaintiff was riding was brought to a stop, she backed out of the seat, opened the door, felt under the seat for her purse while standing on the ground, and as she reached to close the door the truck started and she was injured. The Illinois guest statute denies a right of action to any 'person riding in a motor vehicle as a guest, without payment for such ride,' for injury. The court after stating the purpose of the statute was to protect the generous driver who gratuitously renders a service to his fellow traveler said:

'A narrow or literal interpretation of the words 'person riding in a motor vehicle as a guest, without payment for such ride,' limiting the effect of the statute to accidents occurring when a guest is seated in an automobile in motion, would defeat, or at least impair, the purpose of the legislation. To give full effect to the legislative intent a generous owner or driver must be protected at all times that the relation of host and guest exists in connection with the free ride. The beginning and end of that relation is not unlike the beginning and end of the relation of carrier and passenger for hire in a public conveyance. In the latter case the relation begins with the attempt of the passenger to enter the conveyance and ends when he has alighted in safety on completion of the journey. * * * So, the relation of host and guest between automobile owner or driver and a passenger riding without payment of compensation begins when the guest attempts to enter the automobile, and ends only when he has safely alighted at the end of the ride. Here the ride had not terminated. Plaintiff was injured before she reached her destination. The stopping of the automobile to permit further search for plaintiff's purse and the act of plaintiff in getting out of the car to more effectively make the search, were usual and customary acts incidental to a normal courtesy to plaintiff as defendant's guest. She did not lose her status as a guest.' This holding is reasonable as applied to the facts in the case now before us.

The trial court referred to Puckett...