Simms v. Tingle

• Decision Date: 16 May 1960
• Docket Number: No. 5-2050,5-2050
• Citation: 335 S.W.2d 449,232 Ark. 239
• Parties: Nelcine SIMMS, Appellant, v. Peggy L. TINGLE, Appellee.
• Court: Arkansas Supreme Court

Page 449

335 S.W.2d 449

232 Ark. 239

Nelcine SIMMS, Appellant, v. Peggy L. TINGLE, Appellee.

No. 5-2050.

Supreme Court of Arkansas.

May 16, 1960.

Dissenting Opinion May 23, 1960.

Rehearing Denied June 6, 1960.

Dinning & Dinning, Helena, for appellant.

Barber, Henry, Thurman & McCaskill, Little Rock, for appellee.

JOHNSON, Justice.

This case arises out of an automobile collision. The sole question presented is whether appellant was a guest in appellee's car as a matter of law. The complaint, insofar as pertinent, alleged:

'That the plaintiff's (appellant's) presence in the automobile driven by the defendant was necessary by reason of the joint undertaking of the plaintiff and the defendant in selling and distributing 'Go to Church Stamps' for the Church of God of the City of West Helena, Phillips County, Arkansas, where the plaintiff's husband is the regular pastor and the defendant is a member of the said church. That the plaintiff and the defendant were jointly engaged in the undertaking, for their joint benefits, under a plan adopted by them whereby the defendant's husband's car was used in the morning and the plaintiff's husband's car would be used in the afternoon for the joint purpose of selling and distributing the religious media.'

From a judgment of the trial court sustaining a demurrer and dismissing the complaint, the appellant, upon appeal, relies upon the following three points for reversal.

1. The appellant was engaged in a joint venture with the appellee for their mutual benefit and as such may maintain a suit for the recovery of damages based upon allegations of ordinary negligence;

2. The appellant was not a guest or invitee of the appellee but was a passenger in the automobile under a plan of sharing the expenses which constitutes a passenger for hire; and

3. The question of fact, presented by the allegations in the complaint as to whether the appellant was a guest of appellee, is one of fact and could be determined only by a jury.

The general rule for determining the status of a passenger in an automobile is that if the transportation or carriage in its direct operation confers a benefit only on the person to whom the ride is given and no benefits other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes (Ark.Stats. § 75-913 to 75-915), but if the carriage tends to the promotion of the mutual interests of both the passenger and the driver for their common benefit, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest. Ward v. George, 195 Ark. 216, 112 S.W.2d 30.

We have repeatedly held that when the status of an occupant of a car is questioned and conclusions must be drawn from the evidence, then the issue is one for the jury. Corruthers v. Mason, 224 Ark. 929, 277 S.W.2d 60; Whittecar v Cheatham, 226 Ark. 31, 287 S.W.2d 578; Rogers v. Lawrence, 227 Ark. 117, 296 S.W.2d 899. Certainly in testing, on demurrer, the sufficiency of the allegations in the complaint as regards status, the analogy would be that evidence should be allowed to clarify the allegations. This is true because on a demurrer the complaint, together with all reasonable inferences deducible therefrom, is to be construed most strongly in favor of the plaintiff. (See cases collected in West's Arkansas Digest, Pleadings, k214.) The complaint in this case alleged that the plaintiff and defendant were engaged in a joint undertaking. If it was a joint enterprise then the guest statute would not apply because in Am.Jur. v. 5A, p. 560, 'Automobiles and Highway Traffic, § 521, cases and annotations are cited to sustain this text:

'The automobile guest statutes, relieving the owner or operator of an automobile from consequences of ordinary negligence which result in injury to a passenger in the car do not apply if the owner or driver of a motor vehicle and a passenger therein are engaged in or embarking on a joint adventure or joint enterprise for their mutual advantage and the ride is an integral part of the venture or if the joint enterprise is a motivating influence in providing the transportation for the passenger * * *.'

When the complaint alleged that the ladies were on a joint undertaking, certainly the plaintiff had a right to introduce evidence to establish that fact and bring herself within the quoted rule above which is that on a joint enterprise the guest statute does not apply. There is an annotation in 59 A.L.R.2d, p. 336 entitled: 'Mutual Business or Commercial Objectives or Benefits as Affecting the Status of a Rider under the Automobile Guest Statute' and in that annotation cases from various jurisdictions are reviewed. It seems clear to us that the allegations in the case at bar were sufficient to allow the introduction of evidence.

The appellee, while recognizing the rule permitting recovery for ordinary negligence where the carriage or transportation of a passenger is for the mutual benefit of both the passenger and the driver, points to the case of Henry v. Henson, Tex.Civ.App.1943, 174 S.W.2d 270, and to our own case of Payne v. Fayetteville Mercantile Co., 202 Ark. 264, 150 S.W.2d 966, and argues that the benefit accruing to the driver must be a business or pecuniary benefit and that since any pecuniary benefit resulting from the find-raising drive in this instance flowed directly to the church, the transportation of appellant in no way resulted in a business or pecuniary benefit to appellee.

In the case of Henry v. Henson, Tex.Civ.App., 174 S.W.2d 270, 275, which was appealed from a jury verdict finding that the passenger was not a guest on the basis that certain courtesies had been performed by the passenger to the driver, the Texas Court of Civil Appeals said:

'Mrs. Henry and Mrs. Henson, the record shows, were friends and coworkers in the Women's Missionary Society of the Methodist Church. It is undisputed that each gave a great deal of her time and talents to that work. They were engaged in advancing missionary work, which is a necessary function of that great religious institution, the Methodist Church. These ladies were devoting much of their time to the spiritual uplift of their community through the channel of their society. Their work was for the church, and the benefit accruing to them was the advancement of the Christian religion through their joint efforts as delegates to this conference and the Christian education there received by each of them. But we are unable to say from the facts in this record that such mutual benefit accruing to each of them, or that the benefit to be derived from the trip by Mrs. Henry, the transporter, was of such nature 'as to change the status of plaintiff (appellee) from that of a guest.'

As said in the recent case of Franzen v. Jason, Tex.Civ.App., 166 S.W.2d 727, 728, writ refused:

"In Blashfield's Cyclopedia of automobile Law and Practice (Perm. Ed.), in the 1942 pocket part of Vol. 4, § 2292, in construing said Article 6701 b, it is said that 'the benefit accruing to or conferred upon the operator of one of the guest class must be a tangible one growing out of a definite relationship.'

"In support of that statement of the law the author has cited the case of Voelkl v. Latin, 58 Ohio App. 245, 16 N.E.2d 519, 523, wherein the Court of Appeals of Ohio said in part: 'The relationship which will give rise to the status of a 'passenger' rather than a 'guest' must confer a benefit upon the owner of a definite tangible nature.''

'The positive testimony of Mrs. Henson, appellee, part of which is set out above, negatives the contention that appellant furnished her transportation to and from College Station in the exchange for certain courtesies to be performed by appellee * * *'

Thus, this authority relied upon by appellee does not substantiate her contention that the benefit flowing to the driver which takes the passenger out of the guest statute must necessarily be a business or pecuniary benefit measured in dollars and cents. The complaint here alleges that the plaintiff and defendant were engaged in a joint undertaking in selling and distributing the 'Go to Church Stamps'. The appellee's contention that no benefit flowed to the appellee in collecting money for the church we hold to be without merit for otherwise a great host of religious workers have wasted many valuable hours. Nor is the contention supported by the case of Payne v. Fayetteville Mercantile Co., supra. There the liability of the Fayetteville Mercantile Company depended upon the doctrine of respondeat superior and it was readily apparent that if the driver, who was primarily responsible for the injury, was not liable in that he received no benefit from the transportation, then of course his employer was not.

The question of whether the arrangement for the sharing of car expenses by using appellee's husband's car in the morning and the appellant's husband's car in the afternoon constituted a payment for transportation is one of fact. See Brand v. Rorke, 225 Ark. 309, 280 S.W.2d 906, 907, where we said: '* * * It is certainly true...