*1 20,226. No. Bernard
J. D. Mears Kovacic. (381 991) [2d] P. May 27, 1963. Decided Mr. Thatcher L. in error. plaintiff Shaw, Messrs. Helman, Hockensmith Younge, Stacey, & defendant in error.
En Banc. delivered the opinion of Mr. Justice McWilliams Court. alleged “as complaint that while guest,” paying passenger, a vehicle and not as personal in- suffered driven one *2 damages
juries in a and other resultant total amount proximate Kovacic’s as and result of $15,850 driving the direct characterized as not which was misconduct, negligent and careless but as and willful reckless wanton. anywise
By Kovacic denied in answer negligent pled affirmatively ’53, or reckless and C.R.S. commonly Statute, which 13-9-1, known the Guest provides part as follows: person
“GUEST NO CAUSE OF ACTION. —No HAS transported operator by the motor vehicle owner or guest, payment transportation, as his without such damages against shall have cause of action for operator injury, owner or or death loss in case of accident, unless such accident shall been inten- part tional by of such owner or caused or negligence by consisting intoxication, his of a will- disregard rights ful and wanton of others.” Upon jury pre- trial to at of Mears’ the conclusion granted sentation of evidence trial Kovacic’s judgment appropriate motion to dismiss entered dismissing duly Mears’ Motion for claim. new trial was argued by present filed, denied writ of error judgment. Mears seeks reversal dismissing the claim the trial court held Mears’ affirmatively own evidence showed as matter lawof against had claim that he because of prohibition contained in C.R.S. ’53, 13-9-1. In other the trial court held as a words, matter of law that at the of the accident time in Kovacic’s auto- guest, payment mobile without “as for such trans- portation,” driving and further that act off edge Highway of U. S. No. 6 and into Clear Creek Plume, near at Colorado, Silver 10:30 o’clock P.M. on a night in a severe winter snowstorm was “inten- neither negligence con- intoxication, caused tional ... or disregard rights sisting and wanton willful others.” argument in this main of Mears’ Court thrust prima facie, established,
that under the evidence — — paying he was but a during trip from Junc- Kovacic’s car the ill-fated Grand holding and that the trial court erred in tion guest. therefore as a that he was a It matter law necessary examine in some detail the evi- becomes pertaining Mears’ in Kovacic’s dence status as he rode particular automobile on this occasion. and Kovacic Grand were both residents of fifteen
Junction and had been close friends for some —years February at 28, 1961, such close friends that on 2 o’clock in asked Kovacic the afternoon Mears about *3 urgent The re- to drive him to Denver. reason for this just quest wife, was had learned that his that Mears accordingly he desired Denver, who was sick and was hoped to her at and to return Grand see once her to request, In connection with Mears volun- Junction. teered to pay expenses me “if he would take get bring my to Denver to and back.” When wife her expenses replied: mind, asked what had in he Mears gasoline, trip “All such as incidental to lodging.” Although established food, it go Kovacic himself no reason to to agreed nevertheless aid and hour Mears, to within one the two Denver in Kovacic’s auto- were headed toward and with Kovacic at the wheel. mobile leaving Junction Mears “borrowed a Grand Before any.” Kovacic Mears because did set of chains gas bought paid Junc- for a tank of in Grand then and Springs, stop where in Glenwood tion. A was made bought paid Dillon, At Mears and for coffee. Mears bought paid two of them and also for the
Sandwiches Shortly put with later, chains the car. to have the “leaning asleep Mears seat,” back on the Mears half and
365 slip just a give little, “car that he felt the testified road caught shoulder on the and then it little bit fairly happened fast, and we went ... it over per hour.” going miles . . around were a little fast . hoped that he admitted On cross-examination “he was because Denver drive him to Kovacic good con- did not conceded that then friend.” He any de- template payment sum Kovacic of to “gas going him for preciation to car, of his agreed expenses” and other and oil thing.” get any money going out to was “not complete foregoing to resume The is deemed be testimony bearing between on the all leading up to their Kovacic, and proposed circumstances Denver. to general determine this contro rules which arising difficulty versy any great dispute, the are not in general principles frequently are as is case when so particular sought applied situation. factual (2d) 607, 588, 239 P. So, in Klatka Colo. Barker, out of was stated that in order take 13-9-1, ’53, as the used C.R.S. statute word “the owner benefit conferred on the sufficiently substantial to real, car must inducing transportation.” serve as the cause for following: approval same case we cited with “ person riding ... to take a with another out requirements necessary: (1) class are an ac two potential tual in a benefit material sense or business *4 resulting (2) or to result owner, to the that the trans portation expectation be motivated the of such bene fit.” any reported
Our has attention not been directed to involving decision a factual situation on all with fours similar, of instant case. the Certain are cases though, language and the contained therein is deemed helpful.
366 (2d) 769, Crandall, In v. 129 Colo. 270 P. 384, Loeffler
it was said: “Speaking special tangible which must benefit pas- accrue to the driver anof automobile to take his senger Supreme out of Court of statute, the “Guest” the Criley, (2d) California in 439, Druzanich v. 107 19 Cal. tangible (2d) special P. 445, said: ‘Where benefit to motivating the defendant was the furnish- influence for ing transportation, compensation may the said to given payment portion been . . . The the ex- pense, gasoline as for is and oil consumed on the merely moving incidental and does in- not constitute the ” transportation.’ fluence for the Hungerford,
In Eberle v.
274 P.
In Bedenbender v. Walls, 531, 177 Kan. 280 P. Supreme 630, the Court of Kansas, which state has a virtually Colorado, statute identical to that de- following: clared the determining question person
“In whether a meaning statute, is not within the among many elements to be considered are the identity parties; circum- transportation; type stances of nature, ‘payment’; advantages amount of ing benefits result- growing respective parties to the out of the trans- portation; ‘payment,’ whether the nature, whatever benefit constituted to the and was *5 transporta- furnishing motivating the the influence for trip. purpose tion; and the the nature “With that as basis, [*] we think i'fi [*] may be said the traveling agreement plaintiff by certain husband to motivating expenses, gasoline such as was the taking his car on consideration or reason for defendant notwithstanding the after the the fact that payment by plaintiff did consti- been commenced such in that he thus tute benefit to defendant owner making expenditures himself. relieved of already have been and will not related “The facts They common repeated. show a situation of reciprocal everyone everyday experience —that courtesy hospitality between friends when and social pleasure undertaking social of the mutual relationship parties of mutual concerned. There was no among them other than of a social benefit between traveling expenses by payment of certain nature. The nothing plaintiff husband amounted to change of social amenities and did not transform more than ex-
plain- passengers pay,’ status into that of ‘for when, tiffs’ with- exchange, they guests, out such and conse- transportation’ ‘payment quently was not for such within meaning of the statute. To hold otherwise would compel every hospitality host to dilute and season it bargain. presented sup- of a record with the flavor ports trip purpose conclusion that the sole joint parties. pleasure Friendship was the the plaintiffs being and car. sociability were the basis of ques- fact, have no doubt but that at the time in parties any suggestion would have resented
tion the anything their other social than and for pleasure. occupying mutual One status permitted accept gratuity should not be under men- trifling reciprocity, reservation, and, tal convert it binding agreement having legal consequences.” into foregoing circumstances
Applying the facts com- the trial case, we conclude instant a mat- that Mears as it determined no error when mitted *6 “guest” Kovacic vehicle, in law was a ter of 13-9-1. used in C.R.S. ’53, word is only purpose to served this one and The his could visit take to Denver so he was to Mears friendship long and close when sick Because wife. prob- emergent personal was confronted with Mears sought and in asked a favor Kovacic effect lem, he out request, to volunteered to Mears him. Incidental out-of-pocket expenses pay incurred dur- to be Kovacic’s ing our was much more and in view this offer amenity than enter nature a social an offer to in the willingness pay contract. Mears’ to a business into “gas, lodging” certainly “benefit food and sufficiently serve real, substantial to . . . transportation.” inducing cause for the as an “motivating influence” us, before the record On driving to snow-covered lead Kovacic which through blind- of winter road in middle mountain evening ing cer- 10:30 in at o’clock most snowstorm expectation profit any tainly motive or was not the resulting “payment [by from financial betterment transportation.” Mears] Kovacic was Rather, for such journey impelled to make of his relation- because good ship and a concomitant desire to with Mears do a turn for a friend who had a sick wife. voluntary offering pay Mears’
But for expenses, gas, no related there would be oil other he have been a Kovacic doubt that unwilling simply be vehicle we are hold that commendably very Mears wanted to do the least cause thing pay for, the situation for or least called i.e. at out-of-pocket expense, thereby minimize Kovacic’s guest paying passenger. himself from a into a converted Having determined that Mears as a matter of law automobile, and there in the guilty anything more Kovacic was contention that negligence, very simple at the conclude than most, correctly trial acted in its dismissal Mears’ claim. judgment affirmed. is therefore Chief Justice Frantz
Mr. dissents. Day Justice
Mr. not participating. Frantz Mr. Chief Justice dissenting: quote majority opinion: I from the “ * * * request, In connection with his volun- expenses teered to ‘if would me to take get my bring Denver to wife and her back.’ When asked replied: what he had mind, ‘All in- *7 gasoline, cidental to the oil, food, lodging.’ Although it was established Ko- go vacic himself had no reason to never- agreed theless to Mears, aid and within one hour the two headed were toward Denver Kovacic’s automobile with Kovacic at wheel.” acceptance; an offer
Here was and an these created a binding hire; contract of all the elements of a contract present. say, were We cannot in relation to cir- these cumstances, “this is contract,” and under other cir- involving an cumstances not automobile, “this is a con- tract.” very
At least, case should have been sub- jury question mitted to the on the of whether a contract of hire had been entered into, under instruction de- fining what of hire contract under the law would in- volve.
For I reasons, these dissent.