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

Page 698

264 P.2d 698

74 Idaho 473

RIGGS v. ROBERTS.

No. 7965.

Supreme Court of Idaho.

Dec. 14, 1953.

Joseph M. Imhoff, Jr., Walter M. Oros, Boise, for appellant.

Karl Jeppesen, Boise, for respondent.

GIVENS, Justice.

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:

'* * * That for some time prior to, and on September 9, 1951, it was the custom, usage, practice and general understanding between co-laborers that any laborer employed at said dam, riding in the automobile of another, would pay a nominal cost to help defray the expenses of transportation incident to the use of said automobile to and from said job, all of which said defendant was well aware. That said plaintiff was invited to ride in the defendant's automobile, pursuant to such custom, usage, practice and general understanding, by the defendant through general knowledge and through a third person Jess Busby, * * *.'

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:

'Now, on a motion for nonsuit, as counsel for both sides know the evidence and all inferences which may be deducted from the evidence most favorable to the plaintiff must be resolved in the plaintiff's favor. Well, now, let's see just what we have in this case.

'We start out at once with the rule of law that from the happening of an accident alone negligence cannot be presumed, which is just another way of saying that the burden of proving negligence is on the moving party, that is, the plaintiff, and we see in this case that the plaintiff's evidence could only produce one conclusion in the mind of a reasonable man. We have evidence here as to the condition of the tire. Plaintiff contends that the tire was defective, patently defective, and yet his own witnesses here say that the tire had a tread on it, that there were no breaks in it other than the break caused by the blowout or resulting from the blowout, and that it had about 20 per cent. of its life remaining. That, substantially, is the evidence of the condition of the tire.

'The other basis for negligence is that of the manner of the driving of the automobile both before and during the time of the blowout. Our Legislature has said that a person may travel at any speed so long as his conduct is careful, having regard to all of the conditions which exist. They have not arbitrarily said it is evidence of negligence to proceed over or above a certain speed, and it is common knowledge that speeds of 60 to 70 or even 80 miles an hour are indulged in by persons whom we ordinarily regard as reasonably careful or prudent. So that in itself a speed of 65 miles an hour in this case does not afford evidence of negligence; and as to the manner of driving of the car after the blowout, there is nothing here to show that the defendant negligently induced this condition or situation or that he did not act reasonably after the blowout, in view of the fact that he had not caused it to occur.

'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.

'I am of the opinion here that the plaintiff has failed of this burden and that therefore there is nothing to submit to the Jury. The Motion for nonsuit will be granted.'

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:

'Q. But in any event Busby told you he was obligated to take Riggs back? A. Not obligated. He said that he had promised.

'Q. And he told you that either before the trip was started by you to the Dam or enroute? A. Yes.

* * *

* * *

'Q. And enroute to the Dam that particular night you knew that you had to take Riggs back with you? A. I didn't have to; I said I would.

* * *

* * *

'A. I didn't say he was obligated, because I don't even know that he had a week-end car pool. I told you there that he had promised Cliff a ride home, and if I didn't want to take him he would get Cliff another ride home.

'Q. That Busby would take his car? A. No. To the best of my knowledge there were several cars coming. I don't remember that part of the conversation.

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* * *

'Q. What I'm trying to get at, Sir, is before your started the trip from Mr. Busby's home at Boise--I'm trying to find out if h...