Van Auker v. Steckley's Hybrid Seed Corn Co.

• Citation: 8 N.W.2d 451,143 Neb. 24
• Decision Date: 05 March 1943
• Docket Number: 31504.
• Parties: VAN AUKER v. STECKLEY'S HYBRID SEED CORN CO. et al.
• Court: Nebraska Supreme Court

8 N.W.2d 451

143 Neb. 24

VAN AUKER v. STECKLEY'S HYBRID SEED CORN CO. et al.

No. 31504.

Supreme Court of Nebraska

March 5, 1943

Syllabus by the Court.

1. The question of whether a person riding in a motor vehicle is a guest, or engaged in a joint enterprise, or other relationship is generally one for determination in the individual case. It must be ascertained from facts establishing the identity of the persons advantaged by the carriage, the relationship between the parties, and the purposes to which the transportation is incident.

2. If the evidence is undisputed, or such that minds of men could not reasonably arrive at any other conclusion, the question is one for decision by the court as a matter of law otherwise, it is a question for the jury to decide as other issuable facts in the case.

3. The phrase "without giving compensation therefor" Comp.St.Supp.1939, sec. 39-1129, indicates an intention not to limit compensation to persons specifically paying for transportation in cash or equivalent, or to require that it pass exclusively from the passenger to the driver.

4. 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 a guest.

5. The law imputes to the principal or master responsibility for the negligent acts of his agent or servant done in obedience to the express orders or directions of the master or within the scope of the employee's authority or employment in his master's business, and if those acts cause injury to third persons the law holds the principal or master liable in damages therefor.

6. It is not ground for the reversal of a case that the trial court repeated a proposition of law in the instructions each time in proper connection with facts or other principles involved, or where it does not appear that the effect was to perplex or mislead the jury.

7. A verdict may be set aside as excessive by the trial court or on appeal when, and not unless, it is so clearly exorbitant as to indicate that it was the result of passion, prejudice, mistake, or some means not apparent in the record, or it is clear that the jury disregarded the evidence or rules of law.

Walter Flory & Schmid, of Columbus, for appellants.

F M. Deutsch, of Norfolk, and Fay H. Pollock, of Stanton, for appellee.

Heard before SIMMONS, C.J., and PAINE, CARTER, MESSMORE, YEAGER and CHAPPELL, JJ.

CHAPPELL Justice.

Plaintiff, Carrie Van Auker, administratrix of the estate of John Van Auker, her deceased husband, brought this action to recover damages for his death resulting from collision of two automobiles at an intersection of country roads. Deceased was riding in a Chevrolet coupe owned by defendants Steckley. Defendant Dallas Van Auker, a dealer for them in the sale of Hybrid Seed Corn, was driving the car, at their express direction, as it approached the intersection from the south. Defendant Alfred Lueke was driving the other car as it approached from the east. He was absolved from liability in the trial court and is not involved as a party to this appeal. A jury awarded plaintiff a verdict of $8,000 against all other defendants, and they appeal. We affirm the decision of the trial court.

Defendants' assignments of error are: That the trial court erroneously instructed the jury that deceased was not a guest or engaged in a joint enterprise or partnership as a matter of law; that instructions given the jury were repetitious and thereby prejudicially erroneous; and that the verdict is excessive.

In substance plaintiff's theory of the case is that the deceased was a passenger "giving compensation therefor" in the car of defendants Steckley, driven by their servant at their express direction, in the course of their business, and for their benefit in the furtherance thereof; that under the doctrine of respondeat superior their driver's negligence is imputed to them, and that they and their driver are liable for ordinary negligence.

The theory of defense, so far as it relates to defendants' assignments, is that deceased was a person riding in the car as a guest "without giving compensation therefor" and that defendants are only liable for gross negligence, in which event the case should be reversed and dismissed; or, in the alternative, that defendant driver and deceased were engaged in a joint enterprise or partnership whereby the driver's negligence is imputed to plaintiff, in which event the case should be reversed for a new trial.

It will first be noted that our guest statute, Comp.St.Supp.1939, sec. 39-1129, in so far as applicable here, provides: "The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, unless such damage is caused by ** the gross negligence of the owner or operator *** of such motor vehicle. For the purpose of this section, the term 'guest' is hereby defined as being a person who accepts a ride in any motor vehicle without giving compensation therefor."

The question of whether a person riding in a motor vehicle is a guest, or engaged in a joint enterprise, or other relationship, is generally one for determination in the individual case. 5 Am.Jur. 634, sec. 239. It must be ascertained from facts establishing the identity of the persons advantaged by the carriage, the relationship between the parties, and the purposes to which the transportation is incident. To these facts we then apply logical constructions of statutory words and phrases approved by definitum-precedent. If the evidence is undisputed, or such that minds of men could not reasonably arrive at any other conclusion, the question is one for decision by the court as a matter of law; otherwise, it is a question for the jury to decide as other issuable facts in the case. 64 C.J. 549; Mick v. Oberle, 124 Neb. 433, 246 N.W. 869.

In construing a statute, it is the duty of this court to discover, if possible, the legislative intent from the language of the act and give effect thereto. Hansen v. Dakota County, 135 Neb. 582, 283 N.W. 217.

"Compensation" means that which constitutes or is regarded as an equivalent or recompense; that which makes good the lack or variation of something else; that which compensates for loss or privation; amends; remuneration; recompense. The phrase "without giving compensation therefor" in the statute indicates an intention not to limit compensation to persons specifically paying for transportation in cash or equivalent, or to require that it pass exclusively from the passenger to the driver. 8 Words and Phrases, Perm.Ed. p. 197; Crawford v. Foster, 110 Cal.App. 81, 293 P. 841; Haney v. Takakura, 2 Cal.App.2d 1, 37 P.2d 170, 38 P.2d 160; 5 Am.Jur. 634, sec. 239.

Bearing these preliminary rules in mind, we conclude that 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, and no recovery can be had under our statute except for gross negligence. 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 a guest. If the latter rule be applicable to the present case, plaintiff could recover for ordinary negligence unless prevented by the defensive theory of imputed negligence. See 4 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., § 2292; annotations 82 A.L.R. 1365, 95 A.L.R. 1180; Doherty v. Edwards, 227 Iowa 1264, 290 N.W. 672.

The California statute defines a guest in a manner similar to our own. For its construction see Whitechat v. Guyette, 19 Cal.2d 428, 122 P.2d 47; Duclos v. Tashjian, 32 Cal.App.2d 444, 90 P.2d 140; Carey v. City of Oakland, 44 Cal.App.2d 503, 112 P.2d 714. The same conclusions have been reached in a legion of cases from other jurisdictions having comparable statutes. They are too numerous to recount in this opinion.

Assuming that the factual details of the accident are of no import to a decision, we will not recite them. Evidence upon which we determine whether deceased was a guest or engaged in a joint enterprise or partnership is undisputed. It appears in admissions of defendants Steckley, their agents and employees. A careful examination of the record discloses that defendant Steckley's Hybrid Seed Corn Company is a partnership, composed of and owned by defendants Steckley. They produce and sell Hybrid Seed Corn in Nebraska, South Dakota, Kansas and Missouri, with offices at Weeping Water Nebraska. Defendant Ed Steckley is an owner-manager. They employ a full-time general sales manager in charge of all promotions and sales, and a full-time...