*1 22795. No. A. Eads A. Spoden. Sally
Deryn v. (472 131) July 20,1970. Rehearing- denied June 1970. Decided *2 Wormwood, Wolvington, Jack Dosh, Renner in error. Kent Anderson, L. for defendant J. Walter Richard Gerash, Briskey, in error. En Banc. Pringle delivered the of the Court. opinion Justice
Sally hereinafter as the referred to plaintiff, Spoden, Eads, commenced action personal Deryn injury against dam- recover defendant, to to as the referred hereinafter passenger in defendant’s riding ages as a incurred while the trial defendant’s of the At the close automobile. accident judge at the time ruled that (C.R.S. guest Guest Statute under the Colorado was not a that 13-9-1). conceded for defendant Counsel defendant, negligence simple on had been on against defendant a verdict and the court directed damages submitted liability. issue the issue jury returned verdict which to the $6,000. (1) evidence contends that defendant judge ruling support the trial not does plaintiff a matter excepted statute from the admis (2) an is bound that the law, jury argument during opening sion made plaintiff the defendant. car driven and we agree of error, contentions not with We do *3 judgment of the trial the court. affirm
I. plaintiff area in the same the defendant lived and shop. weeks in the same Several in Denver and worked agreement they an prior into entered to the accident, pay whereby plaintiff two the defendant the would conveyance her between for a week in return dollars fewA place defendant’s car. of work the home and days defen- asked the accident, the before the way Airport home Stapleton on the to drive her to dant might purchase The accident an airline ticket. so that she proceeding happened parties air- the the while along direction port in a different a different route and returning they previously from that had taken when home from work. derogation Statute is in Colorado Guest operator common answer
the law rule which makes the injuries damages by passenger able in suffered arising operator’s his car out the failure to exercise ordinary strictly As the such, care. statute must be
234 determining are its benefits whether
construed when Jones, Colo. 136 Green v. host. to a certain to be extended Sugioka, 185 218, 117 Colo. 1083; Dobbs 512, 319 v. dispute to the as is no here, there Where, as P.2d 784. one of relationship, question becomes the facts of the supra. Sugioka, Dobbs v. law. driving was the defendant case when
In the instant
pursuant
work
home and
her
between
plaintiff was
existing agreement,
of the
status
their
transpor
paid
clearly
passenger
for her
who
of a
pro
not entitled
was
and the defendant
tation
Bridges
Lintz,
Colo.
v.
140
of the
statute.
tection
Houghtaling
327,
Davis, 140
v.
571;
Colo.
582, 346 P.2d
by
paid
cov
The two dollars
There accruing situation in this case. Unlike the to the driver Brohardt, 352 407, Folkers v. in cases such as Colo. only defendant, where the moti- cited 792, P.2d vation was anticipated or business benefit incidental, 607, 239 P.2d where Barker, in Klatka v. Colo. only personal in bene- motivation was satisfaction community, agreement fiting in this case there an *4 transportation contemplating regular weekly pay- parties admittedly proceeding ments. Since were agreement, pursuant home a to albeit circuitous judge can of route, we find error the order the trial directing against a verdict the defendant on the issue of liability.
II. jury, opening statement to the counsel In his recovery. plaintiff theories for for the set forth two guest may plaintiff been a have first was while acting automobile, the in the defendant defendant’s safety. disregard plaintiff’s and wilful wanton plaintiff paying passenger The second was that the relating pay exception to statute within the showing simple transportation, of that a ment for and negligence suf would be on the the defendant liability. ficient to establish procedure permit party to state
Our rules civil many regardless consistency, as claims as he has nothing opening is in the statement which could binding question on the of whether act an admission paying passenger. or a judgment is affirmed. Kelley dissenting. Mr. Justice and Mr. Justice Groves Justice Groves dissenting: respectfully I dissent. majority
Both the trial court and the of this court have by resolving reached conclusions of law factual issues jury. Examples which should have been to submitted following quotations majority are found in the from the opinion: driving
“... the defendant was her between pursuant agreement. home existing and work to their ...” paid by “The two dollars covered her trans- portation to from work whether went adopted by agreement usual route or some route parties day on the of the accident.” change relationship....” “There was no in their admittedly proceeding pur- “Since the home agreement____” suant to that plaintiff inquired
At the time the of the defendant as whether the defendant would drive the *5 236 the
Stapleton Airport, to the pay offered defen- dant for this The defendant trip. stated that would she be to the to the airfield and willing transport refused The defendant that she compensation. testified the made as a favor trip and that she feel that did not it was a of necessarily part the to-and-from-work trans- portation agreement. lived several of miles west of their place
employment. The is several northeast airport miles the As place stated in the employment. majority in to opinion, going the airfield the parties were proceed- in an almost ing direction from that directly opposite taken on customarily majority opinion home. The trip is in its quite liberal of fact “on finding that home.” way makes a majority opinion finding the airport a In is trip contract. my opinion there another factual issue in which is there whether was an inducement to the defendant which amounted to payment In Folkers v. airport trip. 142 Brohardt, 407, Colo. contract existed between the driver of the car and the passenger. However, the rule is enunciated A applicable portion here. in opinion that case reads follows: “The rule is generally adhered to most jurisdictions that a mere incidental benefit a from to driver resulting is not to transportation provided sufficient passenger withdraw the afforded statute. protection The benefit received the driver must been have given under circumstances that it driver indicating induced the to provide to transportation passenger. to
“Reduced its essence the three evidence discloses men, activities, interested same after business hours, business of hours spent couple together, having some drinks. then decided to have dinner They together and the defendant dinner Brohardt offers to pay invites the other two ride with him to men to neighboring partake particular to at a town the meal establishing any ‘in- restaurant. This falls far short of amounting ‘payment’ ducement’ the car driver meaning within the statute.
“Any anticipated incidental business benefit which might possibly Brohardt receive from this social contact motivating cannot be held, as matter of law, be presence cause of the Folkers the automobile at time of the accident.”
From the evidence the instant man reasonable could have concluded that there was sufficient induce- “payment” ment involved to constitute a to the defendant trip Stapleton Field; and another reasonable contrary man could have concluded to and that there resulting was a mere incidental benefit to the defendant. trip airport issue, This as well as that toas whether the agreement, was included in submitted to the basic should have been jury appropriate under instructions. Kelley Justice has authorized me to state he joins this dissent.