Swinney v. Roler

• Court: Indiana Appellate Court
• Citation: Swinney v. Roler, 113 Ind.App. 367, 47 N.E.2d 846 (Ind. App. 1943)
• Decision Date: 03 April 1943
• Docket Number: 16958.
• Parties: SWINNEY v. ROLER.

47 N.E.2d 846

113 Ind.App. 367

SWINNEY v. ROLER.

No. 16958.

Appellate Court of Indiana, in Banc.

April 3, 1943

Arthur & Tuberty, of Logansport, Elliott & Fell, of Kokomo and Horner, McDowell & Gast, of Winamac, for appellant.

McClure & Shenk, of Kokomo, Hillis & Hillis, of Logansport and James A. Dilts, of Winamac, for appellee.

FLANAGAN Presiding Judge.

This is an action for personal injuries in which appellee alleges that he was injured while a guest in an automobile driven by appellant.

To appellee's amended complaint, appellant filed his answer in general denial. The verdict of the jury was for appellee in the sum of $2,800.

Errors relied upon for reversal are: (1) Overruling appellant's motion for a new trial; and (2) overruling appellant's motion for judgment on the interrogatories notwithstanding the verdict.

The specifications of the motion for a new trial summarized are (1) The verdict is not sustained by sufficient evidence, and (2) is contrary to law; (3) the court erred in overruling appellant's motion for a directed verdict; and (4) the court erred in the giving and refusing of certain instructions.

The first three above specifications of the motion for a new trial challenge the sufficiency of the evidence to show, (a) that appellee was a guest under the guest statute (§ 47-1021, Burns' 1940 Replacement, § 11265, Baldwin's 1934), and (b) that appellant was guilty of either wanton or wilful misconduct.

The guest statute above referred to reads as follows: "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 such motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle."

Our Supreme Court has defined the word "guest" as used in the former and similar statute (Acts 1929, ch. 201, § 1, p. 679) as follows:

"The word 'guest' has more of social than business significance. The words 'without payment for such transportation' imply some valuable consideration for the ride. The presence of the person injured must have directly compensated the owner or operator in a substantial and material way. If the trip is primarily social, incidental benefits though monetary do not exclude the guest relationship. If the trip is primarily for business purposes and the one to be charged receives substantial benefit, though not payment in a strict sense, the guest relationship does not exist. Expectation of a material gain rather than social companionship must have motivated the owner or operator in inviting or permitting the other person to ride. The following extract from the dissenting opinion in Scholz v. Leuer, 1941, 7 Wash.2d 76, 95, 109 P.2d 294, 303, elaborates the thought:

"'As indicated in the opinion of the majority, the mere rendition of benefits by a passenger is, of itself, insufficient to take one out of the "guest " classification if the benefits are merely "incidental to hospitality, companionship, or the like. " In resolving the question of benefits and the direction in which they flow, as well as their character and significance, a factor to be taken into consideration is the intention of the parties in entering upon the undertaking. If their actual and mutual purpose be to enter into a relationship other than that of host and guest, and their subsequent acts are not inconsistent with the intended relationship, the mere fact that in the performance of the undertaking the one party does nothing more than what a guest normally would do will not convert the relationship into one of host and guest.

"'On the other hand, where the intended relationship is that of host and guest, the mere fact that benefits have been conferred upon the host will not change his legal status nor that of his guest. Thus, the motives which actuate the parties concerned constitute a primary consideration. Accordingly, when the "benefit" rule is invoked, the transportation must have found its impulse in some mutual understanding from which the carrier has the right to obtain, or expect, some material benefit to himself.'

"We do not consider the mere possibility of benefit sufficient to exclude the guest relationship. Some courts have said it must be 'tangible and direct.' The words imply reality, not potentiality. Courts should not be required to search for a benefit. If it is not apparent then it can hardly be said to be substantial or material." Liberty Mutual Ins. Co. v. Stitzle, 1942, Ind.Sup., 41 N.E.2d 133, 135.

The evidence is that appellant and appellee, on the day of the accident, rode in appellant's automobile from Sharpsville to West Middleton for the sole purpose of playing a game of roque. They were returning to their homes at the time of the accident. The purpose of the trip was entirely...