Zoiman v. Landsman, 39397

• Decision Date: 07 November 1974
• Docket Number: No. 39397,39397
• Citation: 223 N.W.2d 49,192 Neb. 561
• Parties: Zev ZOIMAN, Appellant, v. Mendel LANDSMAN, Appellee, Nebraska Association of Trial Attorneys, amicuscuriae. *
• Court: Nebraska Supreme Court

Page 49

223 N.W.2d 49

192 Neb. 561

Zev ZOIMAN, Appellant, v. Mendel LANDSMAN, Appellee, Nebraska Association of Trial Attorneys, amicuscuriae. ^*

No. 39397.

Supreme Court of Nebraska.

Nov. 7, 1974.

Syllabus by the Court

1. A benefit removing an occupant riding in the motor vehicle of another from the provisions of the guest statute must be a tangible and substantial one to the owner and a motivating influence for his furnishing the transportation.

2. The definition of gross negligence as defined by the guest statute is great and excessive and it indicates the lack of slight care in the performance of duty.

3. If the evidence as to gross negligence is conflicting and reasonable minds could draw different conclusions, it is for the jury. But, when the evidence is resolved most favorably to the existence of gross negligence, and thus the facts are determined, the inquiry of whether or not they support a finding of gross negligence is one of law for the court.

4. The presence of imminence of danger visible to, known by, or made known to a driver, together with a persistence in negligence heedless of the consequences, are factors to be given material, if not controlling, consideration in the determination of gross negligence.

5. A litigant who invokes the provisions of a statute may not challenge its validity. He may not seek the benefit of it and at the same time and in the same action question its constitutionality.

6. It is a general rule that the constitutionality of a legislative act must be raised at the earliest opportunity consistent with good pleading and orderly procedure, or it will be considered as waived.

Alfred A. Fiedler of Fiedler & Fiedler, Omaha, for appellant.

John R. Douglas, Michael F. Kinney, Cassem, Tierney, Adams & Henatsch, Omaha, for appellee.

John C. Gourlay, Lincoln, James A. Lane, Ogallala, John P. Miller, Omaha, Milton C. Murphy, North Platte, Richard Van Steenberg, Scottsbluff, J. Patrick Green, Omaha, for amicus curiae.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

WHITE, Chief Justice.

This is a personal injury automobile accident case brought by the passenger, plaintiff Zoiman, against the driver, defendant Landsman, as the result of a single car accident in which the driver collided with a telephone pole on a public street in the City of Omaha, Nebraska. The court directed a verdict of dismissal at the end of the plaintiff's case, and the plaintiff appeals. We affirm the judgment of the District Court.

The issues presented by this case are: (1) Did the District Court err in not permitting the question as to whether the plaintiff was or was not a guest to go to the jury; (2) in holding as a matter of law that the defendant driver of the automobile was not guilty of gross negligence; and (3) whether the plaintiff properly presented the question of the constitutionality of the Nebraska guest statute, section 39--740, R.R.S.1943, now section 39--6,191, Reissue of 1974.

The pertinent facts are: The plaintiff and the defendant had known each other for some years because of a prior working relationship. In early 1971, plaintiff got a job in Omaha working as a ritual slaughterer. He rented a room near defendant's home, and during that period he rode to work with a third person. Plaintiff would return to Chicago on the weekends and would take a cab to and from the airport during that period. In August of 1971, he again returned to Omaha and rented the same room as before. He had been riding to work with the defendant each day for 3 weeks prior to the accident. The plaintiff continued his practice of flying to Chicago on the weekends. However, upon his return rather than using a cab to get to his Omaha room, defendant would pick him up at the airport. On three different occasions the plaintiff had given the defendant $2 for picking him up at the airport to defray his expenses for running his car. The accident happened, however, while the plaintiff and the defendant were returning home from work during the week. The accident causing the plaintiff's injuries occurred when the defendant suddenly passed out while driving his car and it struck a telephone pole. Prior to the accident, both parties had been carrying on a normal conversation. The expert witness of the plaintiff testified that the defendant's passing out or 'sleepiness' Could be attributed to a hay fever drug. The defendant's doctor had never warned the defendant not to drive while he was taking the drug. After the accident, the defendant was hospitalized for 5 days. During that period the defendant was given numerous tests to determine why he lost consciousness. The evidence shows there was no definite determination that the drug caused the loss of consciousness, and the final diagnosis stated: '* * * possible seizure disorder, cause unknown, possibly related to trauma.'

The plaintiff asserts that the question of whether the plaintiff was a mere passenger and not a guest in the defendant's car should have been submitted to the jury. The evidence shows that on three occasions the plaintiff gave the defendant $2 in connection with picking him up at the airport after his weekend trips to Chicago. During the week the defendant had been taking the plaintiff to work regularly and it was on one of these occasions that the accident happened. There is no evidence at all that there were any arrangements or any payments made for these daily trips. The test as to whether a passenger is a guest within the purview of the statute is: 'A benefit removing an occupant riding in the motor vehicle of another from the provisions of the guest statute must be a Tangible and substantial one to the owner and a Motivating influence for his furnishing the transportation. A remote, vague, incidental, or speculative benefit is not sufficient to have that effect. This is the basis of the rule that the sharing of the cost of operating the car or other expenses of the trip, when the acceptance of the occupant for conveyance is not motivated by or conditioned on such contribution, is incidental, an exchange of social amenities, and does not transform the occupant into a passenger for compensation.' (Emphasis supplied.) Born v. Estate of Matzner, 159 Neb. 169, 65 N.W.2d 593. Not only is there no evidence of any payments for this particular trip or the trips taking the plaintiff back and forth from work, but the plaintiff himself testified affirmatively as follows:

'Q. Now, you worked here about three weeks in August before this accident, right?

'A. Yes.

'Q. And it was your practice to walk over to Rabbi Landsman's house every morning and wait for him and ride to work with him?

'A. Yes, sir.

'Q. And you used to wait out by the driveway?

'A. Yes, sir.

'Q. And as I understand it Rabbi Landsman never came over to your house and picked you up?

'A. He picked me up a couple of times.

'Q. Most of the time you would walk over to him?

'A. Yes, sir.

'Q. You never had any talks with Rabbi Landsman about him giving you a ride to work, I think you said it was just that you lived so close together it worked out that way?

'A. Yes, we didn't make any arrangements.

'Q. You made no arrangements?

'A. No.

'Q. It was just that you were living close to each other and you were both working at the same place?

'A. Yes, sir.

'Q. And that's why you went over there?

'A. Yes, sir.

'Q. Rabbi Landsman never asked you for any money in the morning?

'A. No, sir.

'Q. And you never gave him any in the mornings?

'A. No, sir.' (Emphasis supplied.)

Even giving maximum import to the three $2 payments for the airport travel, the only possible conclusion that can be made is that the money given to defendant was incidental in character and was not the defendant's motivating influence in providing transportation for the plaintiff under the above rule. Under the plaintiff's own testimony, no money was given the defendant at all for the regular daily trips and the only possible construction to be placed upon the three airport 'payments' was that it was a pure gratuity, resulting from hospitality and friendship between the parties and that therefore the payment was incidental in character and was not the defendant's motivating influence in providing transportation for the plaintiff. The trial court's determination on this issue was correct.

The plaintiff next contends that even if the plaintiff were a guest for the purposes of the statute, the evidence was sufficient to submit the issue of gross negligence to the jury because the defendant was grossly negligent in 'passing out' or in falling asleep while operating his motor vehicle. The definition of gross negligence, under our statute, is defined as '* * * great and excessive negligence * * *. It indicates the absence of slight care in the performance of duty.' Hess v. Holdsworth, 176 Neb. 774, 127 N.W.2d 487. The principles governing our appellate judicial review of this question in a guest case are well settled. If the evidence is conflicting and reasonable minds could draw a different conclusion, it is for the jury. But, when the evidence is resolved most favorably to the existence of gross negligence, and thus the facts are determined, the inquiry of whether or not they support a finding of gross negligence is one of law for the court. Thorpe v. Zwonechek, 177 Neb. 504, 129 N.W.2d 483; Ottersberg v. Holz, 159 Neb. 239, 66 N.W.2d 571; Morris v. Erskine, 124 Neb. 754, 248 N.W. 96; Lincoln v. Knudsen, 163 Neb. 390, 79 N.W.2d 716; Werner v. Grabenstein, 165 Neb. 231, 85 N.W.2d 297. It is conclusive under the evidence, much of which we have recited herein, that the sole proximate cause of the accident was the seizure, falling asleep, or the passing out of the defendant as he drove along the street. There is no evidence of excessive speed, intoxication, failure to keep a proper lookout, or the violation of any state statute or city ordinance. Broadly stated the sole...