Robb v. Ramey Associates, Inc.

• Decision Date: 05 July 1940
• Citation: 40 Del. 520,14 A.2d 394
• Court: Delaware Superior Court
• Parties: KATE B. ROBB v. RAMEY ASSOCIATES, INC., a corporation of the State of Delaware

14 A.2d 394

40 Del. 520

KATE B. ROBB v. RAMEY ASSOCIATES, INC., a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

July 5, 1940

Superior Court for New Castle County, May Term, 1940.

Demurrer to declaration.

The plaintiff sued the defendant to recover damages for injuries suffered by her as a result of the alleged negligent operation of a motor vehicle in which she was riding. In each count of the declaration it was alleged that the defendant "engaged in the business of selling burial lots in Grace Lawn Cemetery near Wilmington, New Castle County, Delaware was transporting the plaintiff, Kate B. Robb, to said cemetery in order to induce her to conclude the purchase of a burial lot therein."

The defendant demurred on the ground that it appeared from each of the counts that the plaintiff was being transported as a guest without payment for such service, and that it did not appear that the injury received by the plaintiff was intentional on the part of the defendant or caused by its wilful or wanton disregard of the rights of the plaintiff.

Section 5713 of the Revised Code, 1935, provides:

"No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident unless such accident shall have been intentional on the part of such owner or operator or caused by his wilful or wanton disregard of the rights of others. * * *

"The provisions of this Section shall not relieve a public carrier or any owner or operator of a motor vehicle, while the same is being demonstrated to a prospective purchaser, of responsibility for any injuries sustained by a passenger being transported by such public carrier or by such owner or operator."

The demurrer is overruled.

Caleb R. Layton, 3d, (of Hastings, Stockly and Layton) for plaintiff.

William H. Bennethum (of Marvel and Morford) for defendant.

LAYTON C. J., RICHARDS and TERRY, J. J., sitting.

OPINION

LAYTON, C. J.

Obviously, the declaration was not framed on the theory that the defendant's act was intentional, or in wilful or wanton disregard of the plaintiff's rights. Negligence on the part of the defendant's agent is the basis of the plaintiff's claim for damages.

A guest in an automobile has no right of action against the owner or operator of an automobile for injuries suffered through mere negligence. Gallegher v. Davis et al., 7 W. W. Harr. (37 Del.) 380, 183 A. 620; Law v. Gallegher, 9 W. W. Harr. (39 Del.) 189, 197 A. 479.

If, therefore, the declaration shows that the plaintiff occupied the status of guest, the demurrer must be sustained, for the statute bars the right of action.

The purpose of the statute was to protect one who, generously, without accruing benefit, has transported another in an automobile. Voelkl v. Latin, 58 Ohio App. 245, 16 N.E. 2, 16 N.E.2d 519d 519. The construction of the statute should not be extended beyond the evils for the correction of which it was designed. It was not intended by the Legislature to deny a right of action for injury suffered through negligence of the owner or operator of an automobile by one who is being transported for the benefit of the owner or operator, or for the benefit of both the passenger and the owner or operator. Kruy v. Smith et ux., 108 Conn. 628, 144 A. 304.

In Elliott v. Camper, 8 W. W. Harr. (38 Del.) 504, 194 A. 130, the plaintiff claimed to be a domestic servant of the defendant, and that pursuant to her directions was riding in the automobile in accordance with her contractual duties. This Court, in its charge to the jury, defined a guest in an automobile as one who takes a ride in a car driven by another merely for his own pleasure, and without making any return or conferring any benefit on the owner or operator.

In Sullivan v. Richardson, 119 Cal. App. 367, 6 P. 2, 6 P.2d 567d 567, the plaintiff, a prospective purchaser of real estate, who, at the invitation of a real estate company, was riding in an automobile hired by it and used to carry prospective purchasers to and from the development, was held not to be a guest within the contemplation of the statute. This case is cited in support of the text in 5 Am. Jur. 634.

The declaration alleges that the defendant, whose business it was to sell burial lots in a certain cemetery, was transporting the plaintiff to the cemetery in order to induce her to buy a burial lot. Manifestly, the relationship disclosed was not that of mere friendship, nor was it the...