Riggs v. Roberts
Decision Date | 14 December 1953 |
Docket Number | No. 7965,7965 |
Citation | 74 Idaho 473,264 P.2d 698 |
Parties | RIGGS v. ROBERTS. |
Court | Idaho Supreme Court |
Joseph M. Imhoff, Jr., Walter M. Oros, Boise, for appellant.
Karl Jeppesen, Boise, for respondent.
Appellant sued respondent for injuries suffered by him in an accident while riding in respondent's automobile, driven by him, alleged in the amended complaint to be caused by respondent's negligent operation of the automobile, in that the left rear tire was smooth, worn, and inadequate in tread for braking power and ordinary use; that the usage of said tire for speed at 65 miles per hour was gone and its fabric strength was impaired by age, hard usage and road heat; that the tire could not stand speed at 65 miles per hour on a black top highway, carrying passenger weight of 700 pounds and automobile weight of 4,000 pounds--all of which was known to respondent; that because respondent had failed to maintain said automobile and equipment, failed to warn appellant of this condition and that the speed at which he drove was not careful, prudent, reasonable or proper and that he drove without due caution and circumspection after the tire blew up; that he knew or should have known the tire would be apt to blow up, whereby respondent was guilty of negligence; detailing appellant's injuries.
The original complaint, in substance, alleged appellant orally agreed to pay respondent $1.50 per day to defray the cost of his round trip transportation. The amended complaint reiterated the substance of this allegation.
During the course of the trial, appellant's motion to amend this allegation as follows, was denied:
This amendment, attempting to inject a new feature, was addressed to the sound discretion of the court. The excuse given, namely that the amended complaint of May 16, 1952, was not verified by the plaintiff, it not being shown who did verify it, though the Clerk's record thereof says '(Duly Verified)' is inadequate. Such purported excuse is too unsubstantial to justify holding the court abused his discretion in denying the amendment. Ausich v. Frank, 70 Idaho 494, 222 P.2d 1073; Leete v. Griswold Post No. 79, American Legion, 114 Conn. 400, 158 A. 919; Melcher v. Adams, 174 Or. 75, 146 P.2d 354; Vogrin v. Bigger, 159 Kan. 271, 154 P.2d 111; Fralick v. Mercer, 27 Idaho 360, 148 P. 906; Durant v. Snyder, 65 Idaho 678, 690, 151 P.2d 776.
The offers of evidence anent custom were properly refused, since there was no pleading to justify them. Singh v. McKee, 38 Idaho 656, 225 P. 400; Smith v. Laflar, 137 Or. 230, 2 P.2d 18.
At the conclusion of the case, evidence having been introduced by both respondent and appellant, the court granted a nonsuit, first recognizing that the burden was upon appellant to prove negligence generally if he were a passenger, i. e., had given something of value in exchange for his transportation; and reckless disregard if a guest, Section 49-1001, I.C. (intentional accident or intoxication not involved herein), then analyzed the situation as follows:
'It is true that the plaintiff has shown evidence which should go to the Jury as to injuries; he has been badly injured here, but before the Jury is entitled to sit in a case it must be shown, sufficiently at least, that the defendant has been guilty of the condition which produced the accident.
In effect, two questions are thus presented by the parties herein: the first, of a dual nature, whether the evidence shows appellant was a passenger or merely a guest (we adopt the meanings now commonly used in cases of this nature--passenger, one riding for compensation; guest--no compensation); second, whether there was ordinary negligence or reckless disregard on the part of respondent.
The courts have quite uniformly held that merely paying for gas and oil or sharing the payment for gas and oil is not of itself and alone sufficient to establish passenger status. Elliott v. Behner, 146 Kan. 827, 73 P.2d 1116; Whitechat v. Guyette, 19 Cal.2d 428, 122 P.2d 47.
The authorities likewise are quite uniform to the effect that to constitute one a passenger, not a guest, while the consideration need not be payment of money, there must be contributed by the passenger to the driver of the car something substantial and of worth to the driver, i. e., commercial, not mere courtesy. Albrecht v. Safeway Stores, 159 Or. 331, 80 P.2d 62. This payment or consideration may be made by the passenger or someone else. In other words, the driver must be actuated by a benefit of substantial value, not mere courtesy or kindness or recognition of the amenities or friendship, regardless of whether the one riding in the car or someone else pays or contributes this consideration, to make the rider a passenger. Melcher v. Adams, 174 Or. 75, 146 P.2d 354; Fuller v. Tucker, 4 Wash.2d 426, 103 P.2d 1086; Eubanks v. Kielsmeier, 171 Wash. 484, 18 P.2d 48; Elliott v. Behner, 146 Kan. 827, 73 P.2d 1116, supra; Ausich v. Frank, 70 Idaho 494, 222 P.2d 1073, supra.
Furthermore, the authorities indicate there must be a mutual understanding, reasonably clear to both the rider and the driver before the trip is undertaken, that the rider's relationship to the driver is that of a passenger and not a mere guest. Sprenger v. Braker, 71 Ohio App. 349, 49 N.E.2d 958.
'What was intended originally as a gratuity, cannot subsequently be made the basis of an obligation.' Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, at page 91, 10 A.L.R.2d 1342.
The authorities also are rather uniform to the effect that where the respective parties are in a car pool or share-the-ride arrangement, i. e., for alternate periods each drives his automobile and transports the other, there is sufficient consideration to make each as to the other when riding in the other's automobile, a passenger and not a guest. Peccolo v. City of Los Angeles, 8 Cal.2d 532, 66 P.2d 651; Coerver v. Haab, 23 Wash.2d 481, 161 P.2d 194, 161 A.L.R. 909; Kelly v. Simoutis, 90 N.H. 87, 4 A.2d 868; Miller v. Fairley, 141 Ohio St. 327, 48 N.E.2d 217.
The issues and evidence are to be considered in connection with the amended complaint.
The evidence quoted below is all, as to any arrangement between respondent and Busby or through Busby and appellant as to how appellant came to be riding with respondent:
Robert's testimony:
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