Wilkes v. Melice

• Decision Date: 02 November 1953
• Citation: 48 Del. 206,9 Terry 206,100 A.2d 742
• Court: Delaware Superior Court
• Parties: , 48 Del. 206 WILKES v. MELICE et al.

Page 742

100 A.2d 742

9 Terry 206, 48 Del. 206

WILKES v. MELICE et al.

Superior Court of Delaware, New Castle County.

Nov. 2, 1953.

David F. Anderson, Berl, Potter & Anderson, Wilmington, for plaintiff.

Joseph H. Flanzer, Wilmington, for defendant Lauretta Jean Taber.

Motion for summary judgment by defendant Taber. Denied.

LAYTON, Judge.

On June 9, 1952, defendant Taber's automobile, proceeding north on Route 202 in this State, collided with a tractor trailer being operated in a southerly direction by defendant Melice. Defendants Pontino were the owners of the truck. Plaintiff was a passenger in defendant Taber's machine and has sued all four of the named defendants for injuries sustained in the accident. The defendant Taber has filed a motion for summary judgment upon the ground that plaintiff was a guest within the meaning of Title 21, § 6101, 1953 Del.Code ¹ and is not entitled to recover against her. It is conceded that Taber is not being charged with 'wilful' or 'wanton' negligence which under another portion of the guest statute would entitle plaintiff to maintain an action for injuries.

From the affidavits filed by the parties, it appears that Mrs. Taber and Miss Wilkes lived in neighboring towns near Albany, N.Y., and that the former's husband and the latter's fiance were in the Armed Forces stationed at Aberdeen, Md.; that Mrs. Taber was in the habit of driving to Aberdeen each week-end to see her husband and that on May 16, Miss Wilkes, then a stranger, called Mrs. Taber and asked if she would take her and her fiance's sister, Miss Bouchard, to Aberdeen and back that weekend, to which she agreed. ² From that point on, the affidavits diverge sharply. Mrs. Taber went on to relate that she drove plaintiff and Miss Bouchard to Aberdeen as requested, refusing repeated offers on their part to pay for gas. Finally, her affidavit states, at the end of the trip, she reluctantly agreed to let the two girls pay her $10 as their share for gasoline and oil, but there was no agreement or offer to pay for any future trip; that prior to June 6, she, Mrs. Taber, called Miss Wilkes and offered to take her on the same trip the coming weekend ³ as her guest and that Miss Wilkes accepted, stating she was very glad not to have to pay for she could not afford it.

Miss Wilkes' version is altogther different. As to the May 16th trip, she relates that when she and Miss Bouchard offered to pay for gas, Mrs. Taber refused and stated she would keep an account and render it at the end of the trip at which time she said that the cost of the oil and gasoline was $15, whereupon each of the passengers paid her $5; that '* * * before departing, the parties discussed the next trip they would make in the near future and agreed to follow the same arrangements about sharing the expenses on that trip.'

Plaintiff moves to dismiss defendant's motion first upon the ground that, the affidavits being in conflict upon a material issue, defendant's motion cannot succeed. Rule 56(c) of the Civil Rules of the Superior Court, Del.C.Ann. Defendant, while conceding the conflict, denies its materiality. She takes the position that the weight of authority is to the effect that the mere sharing of the expense of gasoline for a trip made for pleasure or social reasons does not '* * * transform into a passenger one who without such exchange would be a guest * * *.' Druzanich v. Criley, Cal.App., 107 P.2d 445, 447. Admittedly, there are a number of cases which follow this general reasoning, but upon closer examination, it frequently appears that the payment was gratuitous, that is to say, not resulting from a firm undertaking made in advance but,...