Roe By and Through Roe v. Lewis

• Decision Date: 30 June 1982
• Citation: 416 So.2d 750
• Parties: Kenneth Gregory ROE, a minor over fifteen years of age, suing By and Through his father and next friend, Johnny M. Roe; and Johnny M. ROE suing on behalf of himself v. Ed LEWIS. 80-884.
• Court: Alabama Supreme Court

Page 750

416 So.2d 750

Kenneth Gregory ROE, a minor over fifteen years of age, suing By and Through his father and next friend, Johnny M. Roe; and Johnny M. ROE suing on behalf of himself v. Ed LEWIS.

80-884.

Supreme Court of Alabama.

June 30, 1982.

Stephen D. Heninger, of Hare, Wynn, Newell & Newton, Birmingham, for appellants.

Henry E. Simpson, of Lange, Simpson, Robinson & Sommerville, Birmingham, for appellee.

PER CURIAM.

This appeal involves an action for personal injury that was tried before a jury in the Circuit Court for Jefferson County. Kenneth Gregory Roe (plaintiff), a minor brought suit through his father and next friend against Ed Lewis (defendant) for injuries sustained while he was riding in an automobile operated by defendant. Plaintiff alleged that defendant negligently or wantonly caused the vehicle to collide with a tree. The trial court found that plaintiff was a guest under the Alabama Guest Statute, Code 1975, § 32-1-2, and granted defendant's motion for a directed verdict as to the issue of negligence. The issue of wantonness was submitted to the jury. A defendant's verdict was returned. On this appeal, plaintiff seeks our review of the trial court's actions granting the directed verdict on the issue of negligence, and refusing his requested jury charge defining wanton misconduct.

Two issues are presented for our resolution by this appeal. The first is: Was plaintiff a guest under Code 1975, § 32-1-2, thereby allowing the trial judge to grant defendant's motion for a directed verdict on the issue of negligence? The second is: Did the trial court properly refuse plaintiff's requested jury charge defining wanton misconduct? Our review of these issues leads us to conclude that the trial court is due to be reversed on the first issue and affirmed on the second.

The alleged facts pertinent to this appeal are as follows. On September 30, 1977, plaintiff and two others, Claire Holt and Tommy Floyd, were occupants of an automobile driven by defendant. All were high school students and friends. Defendant picked up the others about 6:30 p. m. They drove around for a while and then went to a party. Defendant drove throughout the entire evening. During the course of the evening he consumed four or five beers. Defendant acknowledged that he was "high" but not drunk. The other occupants of the automobile had been drinking mushroom tea. Tommy Floyd and Claire Holt had prepared it earlier that day at plaintiff's home. Testimony related that when drunk it induced a hallucinogenic effect. Defendant did not drink any of the mushroom tea.

After the party, the group continued driving around. Defendant drove to an intersection and there drove onto the front lawn of a house. Defendant gave this explanation of his actions that followed:

Q. Okay. Why did you pull up into this yard we were talking about a few minutes ago? Now what I mean by pull up into the yard, can you pull up off the road into the yard itself?

A. Yeah.

Q. All right. And why?

A. Just raising hell.

Q. Well, what were you going to do in the yard?

A. I was going to trench it.

Q. Okay. Could you explain what trenching is?

A. Yeah, it is--you know, when you are in the yard, you punch it, and the tires spin and makes a trench.

Q. Okay. Did you do that to that yard?

A. No, I didn't get a chance to.

Q. Why?

A. Because the owner of the house pulled up in front of me.

Q. Was he in an automobile?

A. Yeah.

Q. And, then, tell me what happened.

A. Then I swerved to the left, and I pulled out on the street, and then the chase was on.

Q. When you say the chase was on--

A. He started chasing me.

Q. Okay. Where did you go?

A. I went down this real windey road in Hoover, the same road that he lived on, and it keeps going straight, you know, and then it gets into like--gets real curvy. And I was in a real big car, so I guess I was going too fast for those curvy roads.

Q. How fast were you going, if you can recall?

A. I guess about 65, 60.

Q. Okay. Had you been on that road before that night?

A. No.

Q. But it is a very curvy road, as you describe it?

A. Yeah.

Plaintiff testified that prior to the accident, defendant's driving scared him. He stated that he asked defendant to slow down, or to stop the car. According to plaintiff, the defendant did not respond to his requests. There was testimony from Claire Holt and Tommy Floyd that they also asked defendant to slow down or to stop and let them out.

The chase ended when the automobile defendant was driving skidded on some pine straw, left the road, and struck a tree. Claire Holt testified that defendant went into a curve at 40 to 50 miles per hour where the accident occurred.

In his brief, plaintiff concedes that he was a "guest" when first picked up by defendant. As a guest, plaintiff normally could not hold defendant liable for injuries or death unless they were the result of willful or wanton misconduct. Our guest statute, Code 1975, § 32-1-2, provides:

The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.

Previously, this court has commented on the purpose of our guest statute in Blair v. Greene, 247 Ala. 104 at 109, 22 So.2d 834 at 837 (1945):

The situation that this statute was apparently designed to prevent is well known. As the use of automobiles became almost universal, many cases arose where generous drivers, having offered rides to guests, later found themselves defendants in cases that often turned upon close questions of negligence. Undoubtedly the legislature in adopting this act reflected a certain natural feeling as to the injustice of such a situation. The terms of the statute should be construed with their intent and purpose in view, and the purpose and object that the legislature had in mind sometimes throws light upon the meaning of the language used.

This court has stated also, that "the guest statute is in derogation of the common law and as such [it] should be strictly construed." Walker v. Garris, 368 So.2d 277 at 279 (Ala.1979) (citing Green v. Jones, 136 Colo. 512, 319 P.2d 1083 [1958] ). Because the term "guest" is not defined in the statute, definition of that term falls upon the court. Harrison v. McCleary, 281 Ala. 87, 199 So.2d 165 (1967); Sullivan v. Davis, 263 Ala. 685, 83 So.2d 434 (1955). It is a question of fact whether one is a guest within the statute. Boggs v. Turner, 277 Ala. 157, 168 So.2d 1 (1964). A multitude of factual situations exists to which the statute must be applied:

The commercial and social relationships that can exist between the driver of an automobile and his passenger are almost as numerous and varied as human activity itself. At one extreme we have the "hitch-hiker" guest who clearly falls within the purview of the statute. At the other extreme we have the passenger who pays the driver to be transported to a particular place and who is unquestionably beyond the scope of the statute. Between these two extremes the dividing line may at times become illusory and shadowy. It is sometimes necessary to enter into a detailed examination of the present and former relations between driver and passenger; implied and expressed arrangements made between them as to the conduct of the particular trip; the purpose of the mission; the benefits accruing to the driver and passenger from the expedition; and any other factors that bring into proper focus the true status of the parties at the time of the accident which give rise to the legal action.

Sullivan v. Davis, 263 Ala. at 687-8, 83 So.2d at 436.

Plaintiff contends that his protests against defendant's driving during the high speed chase changed his status so as to take him outside the operation of the statute. We agree. In Crovo v. Aetna Casualty and Surety Company, 336 So.2d 1083 at 1085 (Ala.1976) (Crovo), this court observed:

[T]he relationship between the host and guest is consensual in nature and involves some acceptance by the guest of the relationship and its attendant hazards; and ... misrepresentations, express or by implication, which operate to induce one to become a rider in the automobile, can nullify the relationship. [Citation omitted.]

There, this court held that a driver's misrepresentations may operate to negate the effect of the statute. Citing Crovo, this court has stated that "misrepresentations on the part of the driver may nullify the relationship, just as a 'guest's' protests may convert him into a passenger." Walker v. Garris, at 279. We are of the opinion that Walker v. Garris states the correct rule of law applicable to this appeal.

Defendant argues that the language employed in Walker v. Garris, "a 'guest's' protests may convert him into a passenger," is merely dictum without a theoretical foundation in precedent from Crovo. We agree that the statement may be dictum, but we disagree that it is without foundation in precedent. As noted above, this court has given strict construction to the statute and has noted the consensual nature of the guest-host relationship. It is consistent, then, that protests by a guest may vitiate that consent and change his status to that of a passenger.

Defendant argues that to allow the status of an occupant of a vehicle to change from guest to passenger during the trip would, in effect, void the statute. We disagree. The purpose of the statute is to prevent generous drivers, who offer rides to guests, from being sued in what often are close cases of negligence. Blair v. Greene, supra. That purpose is not served by application of the statute in the instant case. To apply the statute here would serve only to insulate the defendant...