Snelling v. Pieper

• Decision Date: 11 June 1965
• Docket Number: No. 35927,35927
• Citation: 178 Neb. 818,135 N.W.2d 707
• Parties: George SNELLING, Jr. by and through his Father and next friend George Snelling, Sr., Appellant, v. Leo PIEPER and Vance Alfrey, Appellees.
• Court: Nebraska Supreme Court

Page 707

135 N.W.2d 707

178 Neb. 818

George SNELLING, Jr. by and through his Father and next friend George Snelling, Sr., Appellant, v. Leo PIEPER and Vance Alfrey, Appellees.

No. 35927.

Supreme Court of Nebraska.

June 11, 1965.

Syllabus by the Court

1. A person riding in a motor vehicle is a guest is his carriage confers only a benefit upon himself and no benefit upon the owner or operator except such as is incidental to hospitality, social relations companionship, or the like, as a mere gratuity.

2. A benefit to the owner or operator of a motor vehicle sufficient to remove an occupant riding in it from the provisions of the guest statute must be a tangible and substantial one and a motivating influence for his furnishing the transportation.

3. The benefit or compensation accruing to the owner or operator need not be in cash or its equivalent and the benefit or compensation to the owner or operator need not pass from the passenger to the driver.

4. Each individual case must be determined separately and the answer ascertained from the relationship between the parties and the purposes to which the transportation is incident.

5. Where the owner or operator of an automobile transports a minor child, with the consent of the child's parents and pursuant to and in performance of a contract for the care of said child, such carriage confers a tangible and substantial benefit upon such owner and operator beyond those merely incidental to hospitality and social relationship.

Schrempp, Lathrop, Rosenthal, Albracht & Bruckner, Omaha, for appellant.

Boland, Mullin, Walsh & Cooney, Omaha, for appellees.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

WHITE, Chief Justice.

Plaintiff, a 12-year-old boy, suffered a broken leg and injuries resulting from a one-car accident occurring on July 27, 1962, when defendant Pieper's station wagon went out of control, overturned and crashed while going around a sharp curve. The trial court found, as a matter of law, that plaintiff was a guest under section 39-740, R.R.S.1943, and by appropriate instruction required the plaintiff to prove gross negligence. The verdict of the jury was for the defendants. Defendant Pieper had permitted the 15-year-old, unlicensed defendant Alfrey to drive his station wagon. Pieper was sitting in the frong seat watching and directing the driving. As the station wagon approached the curve, it went into a skid and Pieper grabbed the steering wheel and attempted to make the turn himself. The station wagon went out of control and overturned. The assignments of error present no question concerning this phase of the case. The sole question presented in this appeal is whether or not the plaintiff was a guest.

At the time of the accident, defendant Pieper was returning to his home in Omaha from a 3-week vacation and camping trip on the Fremont Lakes. He had tents, a boat, and other equipment on the lakes and had taken his own children and the plaintiff there during this period. Plaintiff's father had been divorced and in March 1962 hired the defendant Pieper to take care of the plaintiff for $15 per week. The evidence is undisputed. Pieper was to have the custody of plaintiff in his home in Omaha and generally care for him. The father of the plaintiff was to furnish him clothing and an allowance. The father's undisputed testimony is as follows: 'Q. What in return did Mr. Pieper agree to do for that $15? A. See that the boy went to school properly, got home at the right time in the evening, see that he had recreation, correct recreation, completely guide him and everything, punish him if he needed it, take complete care of him.'

Pieper called plaintiff's father and received his consent to take the plaintiff from Pieper's home to the vacation spot on the lakes. It appears that the plaintiff was kept there under the control and direction of defendant Pieper during the entire period of 3 weeks. Pieper was paid $15 per week for this period in accordance with the terms of the agreement.

Under the guest statute, section 39-740, R.R.S.1943, the applicable test is stated in Van Auker v. Steckley's Hybrid, Seed Corn Co., 143 Neb. 24, 8 N.W.2d 451, as follows: 'A person riding in a motor vehicle is a guest if his carriage confers only a benefit upon himself and no benefit upon the owner or operator except such as is incidental to hospitality, social relations, companionship, or the like, as a mere gratuity. However, if his carriage contributes such tangible and substantial benefits as to promote the mutual interests of both the passenger and the owner or operator, or is primarily for the attainment of some tangible and substantial objective or business purpose of the owner or operator, he is not guest.'

Each individual case must be determined separately and the answer ascertained from the relationship between the parties and the purposes to which the transportation is incident. Van Auker v. Steckley's Hybrid Seed Corn Co., supra.

The benefit or 'compensation' accruing to the owner or operator need not be in cash or its equivalent and the benefit or compensation to the owner or operator need not pass from the passenger to the driver. Sunderman v. Wardlaw, 170 Neb. 70, 101 N.W.2d 848; Van Auker v. Steckley's Hybrid Seed Corn Co., supra; Born v. Estate of Matzner, 159 Neb. 169, 65 N.W.2d 593.

In Born v. Estate of Matzner, supra, we said: 'A benefit to the owner or operator of a motor vehicle sufficient to remove an occupant riding in it from the provisions of the guest statute must be a tangible and substantial one and a motivating influence for his furnishing the transportation.'

Applying the above principles we examine the relationship between the parties to determine what the motivating influence was for furnishing the transportation and the stay at the lakes to the plaintiff, and determine if there was a benefit to defendant Pieper beyond that incidental to hospitality, social relations, companionship, or the like. It is true defendant Pieper incidentally benefited from plaintiff's presence as to companionship and social relations as he did from the companionship of his own five children. They were kept together at the lakes the same as they were at home. There was a special motivating purpose and reason for taking the plaintiff on the trip. Pieper wanted to take his 3-week vacation with his family and at the same time perform his contract of caring for the plaintiff. At home the plaintiff was cared for and controlled along with the children of the defendant Pieper, and the contract, both directly and impliedly, required him to furnish recreation in the normal and usual manner, the same as he did for his own children. The transportation of the plaintiff on the trip was a necessary part of this purpose and plan. He had a joint purpose in the stay at the lakes. It was the performance of his contract, care of the plaintiff, care of his own children, and the enjoyment of his vacation. It is argued that he could have left the plaintiff at home. Perhaps he was not obligated to take the plaintiff on this particular trip. But, he had been caring for and controlling the plaintiff as one of the family along with his own children. He construed the contract as requiring this. He merely changed the place of performance. In any event, the fact is that he elected to perform his contract of care and to furnish this recreation to the plaintiff at the place he did. The defendant Pieper was seeking a method by which he could perform his contract and at the same time enjoy his vacation. He...