Scholz v. Leuer, 27836.
| Decision Date | 13 January 1941 |
| Docket Number | 27836. |
| Citation | 109 P.2d 294,7 Wn.2d 76 |
| Parties | SCHOLZ et ux. v. LEUER et al. |
| Court | Washington Supreme Court |
Action by John A. Scholz and Ruth Scholz, husband and wife, against Maiden Leuer and John Leuer, husband of Maiden Leuer, and James Gale, to recover damages for the death of one in collision between an automobile and a truck. From a judgment in favor of the plaintiffs, the defendants appeal.
Judgment affirmed.
Appeal from Superior Court, Spokane County; R. M Webster, judge.
Shank Belt, Rode & Cook, of Seattle, for appellants.
H. E. T. Herman and Richard S. Munter, both of Spokane, for respondents.
Plaintiffs brought this action to recover damages for the death of their minor daughter, who sustained fatal injuries when the automobile in which she was riding collided with a truck.
Defendants' counsel, in order to narrow the issues at the trial, formally admitted in open court that James Gale, the driver of the automobile, was guilty of ordinary negligence, which proximately caused the girl's death. At the conclusion of the plaintiffs' case, the defendants also rested without offering any evidence. The jury returned a verdict for the plaintiffs. The defendants seasonably moved for directed verdict, for judgment notwithstanding the verdict, and for a new trial, all of which motions were denied. From a judgment entered on the verdict, the defendants have taken this appeal.
It was appellants' sole contention on their motion for a directed verdict, and it is their principal contention on this appeal, that, under the evidence, respondents were precluded from recovery by the Laws of 1937, chapter 189, p 911, § 121, Rem.Rev.Stat. Vol. 7A, § 6360-121, the host and guest statute, which provides: 'No person transported by the owner or operator of a motor vehicle as an invited guest or licenses, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator: * * *.'
The pertinent facts may be summarized as follows:
In December, 1938, appellants John Leuer and Maiden Leuer married and went on a honeymoon trip. Mrs. Leuer then owned and operated an agency for the delivery of a daily newspaper on a route just outside the northerly city limits of Spokane. During her absence, with the use of her automobile, her nephew, appellant Gale, delivered the newspapers on this route. He started to make deliveries on December 25th (Mrs. Leuer accompanied him that day) and continued to do so daily to and including the ensuing January 1st.
Respondents' daughter Evelyn Scholz, a fourteen-year-old, first-year high-school girl, resided with her parents on a farm near Garfield, Washington. On Saturday, December 31st, Mrs. Scholz took Evelyn and her younger sister to Spokane for their respective piano and dancing lessons, and, late in the afternoon, they all went to the home of appellant Maiden Leuer, Mrs. Scholz's sister, to spend the night. Mrs. Leuer had not yet returned, but her mother and appellant Gale apparent were residing there during her absence.
Mrs. Scholz was the only witness who testified as to what transpired that evening. She stated, on direct examination, that appellant Gale and Evelyn had retired sometime near eight o'clock, but she did not go to bed until about eleven o'clock; that Evelyn, who occupied the same bed with her, was then aslep; that Before Gale had retired, 'He asked that Evelyn might go with him in the morning with the papers,' but Mrs. Scholz told him she 'would see'; that she had been awakened a little Before midnight by the ringing of an alarm clock in the adjoining room, and very soon thereafter appellant Game came to her door. Her testimony to the conversation which then ensued was as follows:
On cross-examination, Mrs. Scholz testified that, Before they arrived at Mrs. Leuer's home, Evelyn had expressed a desire to go out somewhere on New Year's Eve and had particularly mentioned a public dance in Spokane, but she had declined to give her consent; that sometime Saturday evening, Evelyn had suggested to appellant Gale that they go to a show, but he replied that he did not know the Sunday route very well, and he preferred to retire early in order to have 'a clear mind' to deliver the papers.
Mrs. Scholz further testified, on cross-examination, as follows regarding the conversation which she had with appellant Gale when he came to the door of her room at midnight:
'Q. Do you recall just what it was he said? Did he ask you if you had made up your mind whether you were going to let her go, or ask you if she could go now, or what? A. Well, I think he came expecting me to wake her up to go with him.
'Q. And then he asked you if you were going to let her go, or words to that effect? A. Yes.
'Q. And it was at that time, then, that you made the statement, as I recall your testimony yesterday, something to the effect that he didn't need her or she would just be in the way, or something like that? A. Well, she wouldn't need to go, mostly because I hated to wake her up.
'Q. Do you recall just exactly what it was you said there? A. I think I said, 'Jim you don't need her to go with you,' is about the words I used.
'Q. And then, as I understand you, he said, 'Well, I would like to have her go, she could help me by reading the book,' or something like that? A. Yes, he said he wasn't familiar with the Sunday route and it would save him stopping to see the names of the next customers. He said she could help by reading the names on the route book.
'Q. That was advanced as sort of an argument to you to allow her to go, wasn't it? A. Yes.
'Q. Well, what happened then? Did you decide you were going to allow her to go? A. That was my final decision. If there had been any snow or the weather bad, I wouldn't have allowed her to go, but the weather was good and I thought there really wasn't any reason why she shouldn't go.
'Q. You knew she wanted to go? A. Yes.
'Q. So, then you awakened her, did you? A. Yes.
'Q. And what did you tell her, Mrs. Scholz? A. I just asked her if she wanted to go.
'Q. What did she have to say? A. 'Sure.'
Appellant Gale testified substantially as follows regarding the assistance which Evelyn gave him on the paper route:
He drove the car, and Evelyn sat beside him. The newspapers were carried on the back seat in bundles of twenty-five, which were brought forward one at a time as needed and placed on Evelyn's lap. She also held the route book, in which the names of the customers were listed, one on each page in the sequence in which they were to be served. As they drove along, she leafed through this book and read off the names in order. The papers were delivered in the usual way, by depositing them in the tubular boxes which had been set up beside the highway for their reception. When a box was on Evelyn's side of the highway, she would open the car window, reach out and insert the paper; and if a box was on his side, appellant Gale would do likewise. Whenever her hands were engaged with the papers, Evelyn would place the route book upside down on the open lid of the glove compartment directly in front of her. As they were proceeding in this manner, at about two o'clock in the morning, appellant Gale brought the automobile in which they were riding into collision with the rear end of a truck, and Evelyn sustained the injuries which resulted in her death.
Appellants contend that it should be held, as a matter of law, that the restrictive provisions of the host and guest statute apply because, they say, Evelyn went upon the trip for her own enjoyment, it being the only means open to her for the celebration of the New Year; the services she rendered were only an incidental, reciprocal favor on her part; and, above all, 'the very essential element element of a previous contract' necessary to take a rider in a motor vehicle out of the operation of the statute was wholly lacking.
Respondents, on the other hand, maintain that appellant Gale took Evelyn with him primarily for the purpose of assisting him with his work, her carriage was chiefly to his advantage, and she did not, therefore, come within the bar of the host and guest statute under what may be called the benefit rule, which is concisely stated in the following paragraph from 4 Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed., 80, § 2292:
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