Taylor, James L.

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North Dakota Law Review Volume 28 Number 2 Article 4 1952 Automobiles - Guest Statute - Compensation - Passenger or Guest James L. Taylor Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Taylor, James L. (1952) "Automobiles - Guest Statute - Compensation - Passenger or Guest," North Dakota Law Review: Vol. 28 : No. 2 , Article 4. Available at: https://commons.und.edu/ndlr/vol28/iss2/4 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. RECENT CASESAUTOMOBILES - GUEST STATUTE - COMPENSATION - PASSENGER OR GUEST. -The meaning of "compensation" as used in state guest statutes is illustratedby two recent decisions, in which opposite results were obtained in dissimilarfact situations. In the first, an Ohio case,' the plaintiff, desirous of com-pleting repairs on his car as quickly as possible, had taken his car to thegarage of his friend, the decedent, who had agreed to finish the job by thenext day if plaintiff would assist him in tearing down the motor. It wasagreed that decedent would, drive plaintiff to his home after the work wascompleted that night and plaintiff's father, who was to return plaintiff tohis home in another car, was directed to proceed on alone. While decedentwas returning plaintiff to his home, an accident occurred, in which decedentwas killed and plaintiff injured. Plaintiff brought action against the admin-istrator of decedent's estate, alleging injury through negligence of decedent.Upon appeal from judgment for plaintiff, held, defendent in the absence ofa showing of wilful or wanton negligence on the part of decedent, would notbe liable for injuries to plaintiff, in that plaintiff, not having given "compen-sation" for his ride, was a guest within the meaning of the Ohio guest statute.2In the other case, 3 decided in California, plaintiffs sought damages for in-juries received in an auto accident, which resulted while plaintiffs and de-fendants were vacationing together. Both parties had agreed prior to thecommencement of the trip to contribute to a common fund, from which were-to be paid all expenses of the trip. In affirming judgment for plaintiff, itwas held, one justice dissenting, that plaintiffs, in contributing to the expensesof the trip, had given "compensation" and were thus not guests within theCalifornia guest statute. 4Originally guest statutes were designed primarily to free the automobilehost from liability to guests for ordinary negligence as imposed by the earlycommon law rule.5 However, most guest statutes today still allow the guestto recover where the host has been guilty of gross or wanton negligenceor he is driving while intoxicated.6 A different view is taken by states whichdo not have guest statutes but follow the English common law rule andthere the host is liable where there is shown something less than wilful,wanton or negligent conduct.7Clearly of prime importance is the problem of distinguishing between a1. Ames v. Seifert, 99 N.E.2d 905 (Ohio 1951).2. Page Ohio Ann. §6308-6 (1935): "The owner, operator or person responsible forthe operation of a motor vehicle shall not be liable for loss or damage arising from injuriesto or death of a guest while being transported without payment therefor in or uponsaid motor vehicle, resulting from the operation thereof, unless such injuries or deathare caused by the wilful or wanton misconduct of such operator, owner or personresponsible for the operation of said vehicle."3. Whitmore v. French, 235 P.2d 3 (Calif. 1951).4. Calif. Veh. Code §403 (Deering 1937): "No person who as a guest accepts a ridein any vehicle upon A highway without giving compensation for such ride, nor any otherperson, has any right of action for civil damages against the driver of such vehicleor against any other person legally liable for the conduct of such driver on account ofpersonal injury to or death of such guest during such ride, unless the plaintiff in anysuch action establishes that such injury or death proximately resulted from the intoxicationor wilful misconduct of said driver."5. Gammon, The Automobile Guest, 17 Tenn. L. Rev. 452, 455 (1942).6. 4 Blashfield, Cyclopedia of Automobile Law and Practice §2313 (Perm. ed. 1946).7. Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168 (1917).NORTH DAKOTA LAW REVIEWguest and a passenger, and ordinarily a guest is thought to be one whoaccepts a ride without the payment of compensation therefor. 8 This com-pensation, some states hold, must flow from some contractual relationship,express or implied,9 and the test of such relationship would seem to bewhether or not the host can recover at law for the reasonable or agreed valueof the transportation furnished.10 However, courts are reluctant to find acontract, thus increasing the host's liability, unless it clearly appears that hewas motivated in supplying the transportation by the benefit received.11 Amore liberal view, one which is gaining increasing popularity, is taken bystates which require no contract but only some substantial benefit, monetaryor otherwise, to the driver for the transportation furnished.12 Such non-con-tractual relationships have been found and the rider is said to be a passen-ger as a matter of law, where the passenger assisted the driver in helpinghim to locate his destination"3; where the rider was the agent of the driverand the purpose of the trip was to facilitate the employment of the passen-ger, thus conferring a benefit upon the principal- driver 14; where the trip isin contemplation of the mutual benefit of both parties; 15 and where the partiesare on a joint venture. 16The nature of the trip is also sometimes important. Trips which have aprecise business aspect or prior arrangement to share costs and expenses, eventhough the trip is made for the mutual pleasure of the parties, more oftenmake the rider a passenger than a guest.1 7 Where the trip is for the jointpleasure of the parties and there is a sharing of gas and oil expenses with-out prior arrangement therefor, such payment is usually held only to be8. Clendenning v. Simerman, 220 Iowa 739, 263 N.W. 248 (1935) (where employeruf defendant bought gas for defendant's car to take employer's daughter and her friend,plaintiff's decedent, shopping in a nearby town, decedent was not a passenger). See 2Restatement, Torts §490, comment a (1934).9. Dennis v. Wood, 357 Mo. 886, 211 S.W.2d 470 (1948); Voelld v. Latin, 58 OhioApp. 245, 16 N.E.2d 519 (1938) (where plaintiff's husband paid two dollars of theexpenses of a two family pleasure trip, there was no contractual relation enforceable atlaw); Gale v. Wilber, 163 Va. 211, 175 S.E. 739 (1934).19. Hale v. Hale, 219 N.C. 191, 13 S.E.2d 221 (1941); Coerver v. Haab, 23Wash.2d 481, 161 P.2d 194 (1945) (held contract in a "share-the-ride" case).11. Boggs v. Plybon, 157 Va. 30, 160 S.E. 77 (1931). Also see Richards, AnotherDecade Under the Guest Statute, 24 Wash. L. Rev. 101, 104 (1949).12. Humphreys v. San Francisco Area C. Boy S. of America, 22 Cal.2d 436, 139]P.2d 941 (1943); Scholz v. Leuer, 7 Wash.2d 76, 109 P.2d 294 (1941) (accompanyingdefendant to assist him in locating customers on paper route and this was held to be abenefit)..13. George v. Stanfield, 33 F. Supp. 486 (D. Idaho 1940); Haney v. Takakura, 2 Cal.App. 2d 1, 37 P.2d 170 (1934); Dorn v. Village of North Olmstead, 133 Ohio St. 375,14 N.E.2d 11 (1938).14. Kruy v. Smith, 108 Conn. 628, 144 Atl. 304 (1929) (defendant, so that plaintiff,his housekeeper, could more quickly take up her duties, picked her up in his car;court held benefit flowed to driver such that he was liable for her injuries on the trip).15. Piercy v. Zeiss, 8 Cal. App.2d 595, 47 P.2d 818 (1935); Bookhart v. Greenlease-Lied Motor Co., 215 Iowa 8, 244 N.W. 721 (1932) (plaintiff injured while defendantwas demonstrating car and court found compensation); Thomas v. Currier Lumber Co.,283 Mich. 134, 277 N.W. 857 (1938) (plaintiff was passenger of defendants agent,who at the request of the defendant was driving the plaintiff to defendant's office to closebusiness deal).16. Jensen v. Hansen, 12 Cal. App.2d 678, 55 P.2d 1201 (1936) (held compensationwhere plaintiff and defendant were going to appraise house).17. Kruzie v. Sanders, 23 Cal.2d 237, 143 P.2d 704 (1943) (held benefit whereplaintiff was to assist defendant in selecting Christmas gift); Duncan v. Hutchinson, 139Ohio St. 185, 39 N.E.2d 140 (1942); Russel v. Pilger, 113 ,Vt. 537, 37 A.2d 403 (1944).RECENT CASESincidental to the trip.18 In these cases the provocation for the offer of trans-portation is the joint pleasure of the parties and the sharing of expenses issimply an exchange of social amenities and courtesies among close friends.It should be kept in mind that whatever degree of benefit is required bythe jurisdiction to take the case out of the operation of the guest statute,it is basic that such a result can be reached only if the benefit is the chiefmoving influence for the furnishing of the transportation.' 9 Thus it must ap-pear clear that to a great degree each case presents a factual problem asto the existence or non-existence of a benefit to the host. The court in theinstant California case,20 for example, appears to be influenced in its de-cision by the comparatively large sum contributed by the plaintiff's to thedefendant. In the Ohio case, 2 1 on the other hand, the court, reaching anopposite result, relies heavily upon the close relationship of the plaintiff anddefendant in failing to find a "compensation".The California case represents the liberal trend and it is hoped that NorthDakota, whose guest statute 22 appears untested in this respect,2 3 will seefit to follow this late trend, thus contributing some measure of security to theregrettable position of the guest who must otherwise bear the brunt of asituation not of his own making.JAMES L. TAYLORCRLMINAL LAW - INSANITY - PRESUMTION AND BURDEN OF PROOF - IN-STRUCTIONS. -The defendant was convicted of the crime of rape. Upon aplea of not guilty, the entire defense was based on the defendant's insistencethat he could not remember what had occurred at the time the offense wascommitted. No evidence was offered by the defendant to raise the issueof insanity, nor was there a request by him to submit such issue to the juryunder the guidance of instructions. Witnesses for the prosecution testifiedthat the defendant had appeared to be "in a trance" and "abnormal." How-ever, two psychiatrists testified, apparently in rebuttal to what was con-ceived to have been a defense of insanity, that the defendant was of soundmind. On appeal, it held that the complete absence of instructions by thetrial court on the issue of the defendant's insanity required that the basebe reversed and remanded for a new trial. Tatum v. United States, 190 F.2d612 (D.C. Cir. 1951).Persons who are insane cannot be held criminally responsible for their18. Fiske v. Wilkie, 67 Cal. App.2d 440, 154 P.2d 725 (1945); Eubank v. Kiels-meier, 171 Wash. 484, 18 P.2d 48 (1933). Compare McCann .v. Hoffman, 9 Cal.2d279, 70 P.2d 909 (1937) with Walker v. Adamson, 9 Cal.2d 287, 70 P.2d 1914 (1927).19. Kruzie v. Sanders, 23 Cal.2d 237, 143 P.2d 704 (1943); McCann v. Hoffman,9 Cal.2d 279, 70 P.2d 909 (1937); Rogers v. Vreeland, 16 Cal. App.2d 364, 60 P.2d585 (1936) (sharing expenses of short drive to mountains to see flowers did notconstitute compensation); Dorn v. Village of North Olmstead, 133 Ohio St. 375, 14N.E.2d 11 (1938); Syverson v. Berg, 194 Wash. 86, 77 P.2d 382 (1938) (mother'schaperoning of daughter who had dance date with defendant did not bestow sufficientbenefit upon defendant to take mother out of guest statute).20. Whitmore v. French, 235 P.2d 3 (Calif. 1951).21. Ames v. Seifert, 99 N.E.2d 905 (Ohio 1951).22. N.D. Rev. Code c. 39-15 (1943).23. Cf Bentley v. Oldetyme Distillers Co., 71 N.D. 52, 298 N.W. 417 (1941) (wherecourt discussed problem of compensation but main issue adjudicated was question ofexistence of agency).

Automobiles - Guest Statute - Compensation - Passenger or Guest

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Automobiles - Guest Statute - Compensation - Passenger or Guest

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