Smith v. Clute

• Decision Date: 12 April 1938
• Citation: 277 N.Y. 407,14 N.E.2d 455
• Parties: SMITH v. CLUTE.
• Court: New York Court of Appeals Court of Appeals

277 N.Y. 407

14 N.E.2d 455

SMITH

v.CLUTE.

Court of Appeals of New York.

April 12, 1938.

Action for injuries received in automobile accident by Beatrice Smith against Theresa Clute. From a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department, 251 App.Div. 625, 297 N.Y.S. 866, reversing on the law a judgment of the Trial Term in favor of the plaintiff and dismissing the complaint, the plaintiff appeals.

Judgment of the Appellate Division reversed, and judgment of Trial Term affirmed.

CRANE, C. J., and LEHMAN, J., dissenting. Appeal from Supreme Court, Appellate Division, Third Department.

Warren Sears, of Whitehall, for appellant.

John H. Barker, of Glens Falls, for respondent.

FINCH, Judge.

This is a suit for personal injuries. The question presented for decision is whether a statute of the state of Montana, permitting a guest to sue only for gross negligence, precludes recovery here.

The plaintiff, the defendant, and their two companions, all teachers at the same school, decided to take an automobile trip to California. After discussion, the route to be traversed was agreed upon, and it was also agreed that the expenses of the operation of the car, for gasoline, oil, and other incidental expenses, should be borne equally by all four. Each member of the party contributed $10.50, which was used for preliminary expenses (apparently this was for payment of premiun on an automobile liability insurance policy), and each contributed $50 toward a general fund from which the expenses of operation were paid. The defendant donated the use of her automobile for the trip. While traveling through the state of Montana, the defendant, in passing a car going in the opposite direction, drove off the road into a pile of sand or gravel. Plaintiff received a severe jolt, which resulted in a sacroiliac sprain of her right hip. The trial court submitted to the jury the question whether the defendant was guilty of negligence, and the jury returned a verdict in favor of the plaintiff. The Appellate Division, one justice dissenting, reversed and dismissed the complaint on the ground that the Montana guest statute was applicable; that, therefore, plaintiff could not recover unless defendant was guilty of gross negligence or recklessness; and that as a matter of law there was no evidence of gross negligence or recklessness on the part of the defendant.

The accident occurred in Montana, and the law of that state governs the plaintiff's right of action. Montana has a guest statute, the relevant portions of which are as follows:

‘An Act Releasing Owners and Operators of Motor Vehicles from Responsibility for Damages or Injuries to Gratuitous Passengers. * * *

‘Section 1. The owner or operator of a motor vehicle shall not be liable for any damages or injuries to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire * * * unless damage or injury is caused directly and proximately by the grossly negligent and reckless operation by him of such motor vehicle.

‘Section 2. Any person riding in a motor vehicle as a guest or by invitation and not for hire, assumes as between owner and guest the ordinary negligence of the owner or operator of such motor vehicle.’ Montana, Laws of 1931, c. 195.

It is for this court to determine whether the plaintiff was riding ‘as a guest or by invitation and not for hire’ within the meaning of the Montana statute, so as to bar recovery by her in the absence of gross negligence or recklessness on the part of the defendant. Apparently the courts of Montana have not passed on this question. Guest statutes, similar to that of Montana, have been enacted in many other states.

These statutes, being in derogation of the common law, have been strictly construed. It has been held in general that if there is mutual benefit or any benefit at all conferred upon the owner or operator of the automobile by the presence of the passenger, the latter is not regarded as a guest and may recover as in the ordinary case of negligence. Such benefit has been found where the passenger was a servant of the owner or operator of the car (Kruy v. Smith, 108 Conn. 628, 144 A. 304;Knutson v. Lurie, 217 Iowa 192, 251 N.W. 147;Garrett v. Hammack, 162 Va. 42, 173 S.E. 535;Hart v. Hogan, 173 Wash. 598, 24 P.2d 99. Cf. Labatte v. Lavalle, 258 Mass. 527, 155 N.E. 433); where the plaintiff was a prospective purchaser of the automobile (Crawford v. Foster, 110 Cal.App. 81, 293 P. 841;Bookhart v. Greenlease-Lied Motor Co., 215 Iowa 8, 244 N.W. 721, 82 A.L.R. 1359); where the passenger was a prospective customer for products sold by the owner or operator (Piercy v. Zeiss, 8 Cal.App.2d 595, 47 P.2d 818;Foale v. Linsky, 279 Ill.App. 58. Cf. Streeter v. Locke, Mass., 4 N.E. 2d 297); where the plaintiff was assisting the defendant in obtaining work for himself or another (Cardinal v. Reinecke, 280 Mich. 15, 273 N.W. 330,274 N.W. 379. Cf. Elkins v. Foster, Tex.Civ.App., 101 S.W.2d 294); where the parties were coemployees going to work or business coadventurers (Bree v. Lamb, 120 Conn. 1, 178 A. 919;Chumley v. Anderton, 20 Tenn.App. 621, 103 S.W.2d 331); and where the plaintiff was otherwise assisting the defendant (Sumner v. Edmunds, 130 Cal.App. 770, 21 P.2d 159;Poole v. Kelley, 162 Va. 279, 173 S.E. 537 Cf. Semons v. Towns, 285 Mass. 96, 188 N.E. 605).

The reasoning upon which these decisions are based is well stated in Knutson v. Lurie, supra: ‘One may be a passenger in an automobile without being a guest, a mere passenger by invitation, or a passenger for hire in the legal sense of the word. There are, in fact, a multitude of persons riding in cars daily who are not guests, passengers by mere invitation, or passengers for hire within the legal meaning of that term. A person riding in an automobile may be there because of the relationship of master and servant existing between him and the owner. In other instances, the rider in an autombile may be there (without the relationship of master and servant) for the definite and tangible benefit of the owner or operator; or such person may be in the automobile (without the relationship of master and servant) for the mutual, definite, and tangible benefit of the owner or operator on the one hand, and of himself on the other. [Cases cited.] When the legislature of Iowa used the phrase in section 5026-bl, before quoted, to-wit, ‘as a guest or by invitation and not for hire,’ its evident attempt was to exclude recovery by a guest or a mere invitee except for the reckless operation of the automobile. The use of the phrase ‘and not for hire’ was merely to aid in the understanding of the meaning of the word ‘guest’ and of the phrase ‘by invitation.’ By using those words and phrases, the legislature did not intend to include all persons who might from time to time ride in an automobile, as before explained. It is evident that the intent of the legislature, therefore, was to recognize nongratuitous riders in an automobile, as well as a guest and a mere invitee. Likewise, it is apparent that the legislature intended to distinguish between ‘passenger for hire,’ as that term is used in law, and other nongratuitous riders in an automobile. Through the legislation, a safeguard against the prevalent claims for damages by guests or mere invitees was placed around the owner and operatorof the car.' 217 Iowa 192, at pages 195, 196, 251 N.W. 147, 149.

The title of the Montana statute refers to ‘gratuitous passengers.’...