Smith v. Franklin
376 P.2d 541
Utah
1962
Check Treatment

*1 Reception 376 P.2d 541 a Flower Cove Cafe and Center wedding parties cooking and courses in Bryson SMITH, guardian Thelma of the indulgeable at available times. person and estate of Carol Appellant, Plaintiff and assigned purposes All these are corporation, without inclusion in the basic

provisions purpose arti- found FRANKLIN, Defendant and Respondent. cles, which authorize a burial association. purpose appar- If exclusiveness of No. 9664. ent, it is found in such authorization. To Supreme Court of Utah. suggest purpose that the articles reflect a benevolent, exclusively “educational, Nov.

fraternal, reformatory pur- charitable or

poses” myopia. would lend novel twist to commendable, laudatory functions anticipated by by-

and facilities brief and invite,

laws of defendant would seem to registration

avoid of the debentures. Be as may, to, we are constrained and do con- stipulated

clude under the facts and association,

the charter the deben- proposed public offering

tures are such registered

as must be as securities under provisions 61-1, of Title U.CA.1953. Chap.

The contention that Laws

pf 1955-, supervision having to with do associations, cemetery this case removes 61-1-4, U.C.A.1953, having to with do

registration securities, think unmer do legislation

itorious. The two items of clash, con but are coexistent without

flict.

WADE, J.,C. and McDONOUGIi and JJ.,

CALLISTER, concur.

CROCKETT, J., in the result. concurs *2 Strong, City, for re-

Rich & Salt Lake spondent.
CROCKETT, Justice. guardian Plaintiff Thelma B. as (her granddaughter), Carol seeks Smith to recover for Ardith Smith the death of (her daughter) col- which resulted from riding in the lision while the deceased was defendant’s car. proved problem to be of

controlling importance is wheth- in this case er the deceased was by plaintiff, guest, as contended contended defendant. U.C.A.1953, statute, 41-9-1, Our Sec. Statute,” pro- commonly called “Guest *3 representa- guest (or legal vides that a his recovery right not have a of tive) shall against un- driver of a motor vehicle proximately by injury caused less was his of the wilful misconduct or intoxication those factors is no driver. There claim Therefore, there present here. recovery against un- defendant preponderance less it a were established deceased, of the Ardith Smith, passenger for The evidence shows: cousin, Franxlin and her Ardith residing young were both women Tooele, about 36 of Salt Lake miles west Swan, Allen City,' City; October, 1960, M. Lake ap- Salt 11th of Ardith for pellant. go told she to Lorrie that needed to Salt

J9 present tors are way to obtain a loan and asked Lake Lorrie to that it does there; appear certainty her Lorrie told her that jus- drive she sufficient to money tify gasoline; paid ruling for had as a matter of either law gas the rider which guest for Lorrie said or a passenger for experience judged previous exists, hire. Where uncertainty she purpose; given by 41-9-2, U.C.A.1953, for that definition during sufficient Sec. guest trip returning to Tooele the that a person accepts accident is “a oc- who killed, in which Ardith was ride in giving compen- vehicle curred de- without which are therefor,” of not now our provide tails concern. sation does not the con- question clusive answer. The arises as to The trial court defendant’s mo- denied “compensation” what constitutes sufficient tion for a and submitted directed verdict change normally what guest would be a question whether the de- passenger to a for hire.1 hire, ceased for passenger which they answered, Accordingly, judg- “No.” It must be conceded that where Plain- ment was entered the defendant. basically it is shown that the is rider a social did appeals, that the court tiff contending guest, giving just neither the “any of com present issue pensation,” might be some incon rise to the neces- proper gives basis. This sequential money amount of other con guest, sity considering one is when value, sharing nor even the sideration passenger distinguished from a expenses, merely reciprocation in social meaning guest statute. within ride, change relationship phrase that of for hire. The simple test is to state and under “compensation therefor” as used in the stat most easy pas apply: circumstances means ute the ride. senger for pays hire is who one for his Therefore, to be sufficient it would have ride; is one is furnished a ride who money rea (or value) that it thing other of charge. free The former is in the na parties sonably supposed could be money; ture of a business transaction regarded there is so But whether it. whereas the latter is motivated obviously the deter in the transaction considerations, usually a social nature. *4 Difficulties are encountered where both fac- for the mining payment factor. Where Mower, 336, James, Torts, Harper Jensen v. 4 1. See Utah 2d 2 and 961- Cf. 2. 683, Kolovos, P.2d 294 and authorities therein 224 see Johnson v. Or. many varying points 334, 1115, ap cited. For and which seem to 355 P.2d prove view on this matter cases see Annota rule. seq. 1351, tion 10 et A.L.R.2d 20 it, the fact chief inducement

ride is the for giving main inducement the ride.3 in- Although may given that there exist some social the instructions also which were enjoy- are not so faultless as giving beyond centive which the ride to be makes criti- cism, not their subject driver would treatment able or desirable for the of this composite,4 and change host considered in the its to that of character adequately guest. language so advised in not un- plaintiff. favorable to the In the absence expedient convenient or Howsoever prejudicial her, error and reversal may be black things as either see granting of a new trial is not warranted.5 perplexing problems white and to avoid apparent It is that the trial uncertainty, can twilight areas of regarded the even showing evidence always payment not both Where done. if it have be true that Lorrie present, and social incentive are trip except request taken for the each support Ardith, as a favor to her it also cousin hauling exerted a influence on substantial reasonably be found that she would rela problem as passenger, except taken fact for the faced tionship parties must between the those Under furnished the $2.00. issue up by submitting the to and resolved proper circumstances, it was discreet trier). fact (or jury for disputed to refer the issue to the 50(b) Rule U.R.C.P. From our consideration of this determination. the sub subject obviously designed encourage dealt and the authorities which have it, persuaded that the sound mission of controverted issues with about practical is that determination there is doubt view whenever permits the basis of determination be made on matter. This should Gillespie Rawlings, Appeal District Court v. 49 Cal. 3.The California also See Chaffin, 601, 359, v. of Hart 144 P.2d where the Cali in App.2d 326, case Cal. 2d 317 905, approved Supreme explained P.2d 300 Court fornia “Where, however, that, key “tangible benefit, thought instruction: driver kindness, pleasure, some receives which is the or friend not mere alone, principal inducement ship rider’s trans in must chief portation, given ride”; which is and received and Burt v. ducement compensation, (Tex.Civ.App.), and as a as action, trans business 244 S.W.2d Lochausen passenger, 34.3, Jury a rider is a In instruction form 915. Cf. ” * * * guest. (Emphasis This case was cited Forms Utah. add struction approval ed.) and reference made to subject numerous cases 4. That should be considered Ray Cal.App.2d Hanisch, 742, Hillyard By-Prod- together v. 147 see Utah ucts, 2d 263 P.2d 287. States, Cir., 5. See Finn v. United F.2d 894. *5 grounds elim- I concur in the result on the merits, and is more conclusive which by ques- HENRIOD, stated necessity ruling on the Mr. with the inates the Justice provides following The rule observations: as a matter of law. tion for verdict motion directed that when a my opinion requires In the evidence “ * ** to the courf deemed denied holding as a matter of law that Ardith the sub- the to have submitted action deceased, accidentally the killed legal ject to later determination while riding guest her cousin Lorrie motion”; for by and questions raised Franklin, defendant, pas- and not as a allow to subsequent proceedings senger for day hire. On the accident upon the matter again and rule consider requested decedent Lorrie Franklin to drive is inconsistent with verdict Tooele, resided, Utah, her from where both motion. City back, Lake to Salt and distance about 72 so that decedent could at- in with the de accord The verdict personal tend to some business. Lorrie had unnecessary position it fendant’s rendered night only worked shift and obtained us, court, to be con the trial and for for before; however, sleep night hours few it properly cerned whether pay she consented and decedent offered to law that the de ruled as a matter of been they Tooele, gas. Before left de- However, think guest. ceased paid gas, cedent observation: appropriate to make this previous she knew from Lorrie testified of the invariable particularly in view merely trips would sufficient to take any be resolved rule that doubts should and to Salt Lake back. Unless de- them submitting disputed issues favor gas, paid trip had cedent disposed disagree with jury,6 we made Lorrie not have been because had trial court course followed City, go to Lake and she reason to Salt controversy. allowing jury to settle gas money to enough go didn’t have (respond- Costs Affirmed. pay it at the time. ent). respond- record it is clear that From the trip taken the but for ent would not have McDonough callister, jj., her cousin. request a favor to and as concur. purchased to gasoline was sufficient Just to Tooele. WADE, get Lake back (concurring in the the car to Chief Salt Justice result). Lake nor had business in Salt Oregon Co., Co., 477, 251 R. R. 122 Utah 6. Newton v. Short Line R. R. Pac. P. Sticle v. Union reasonably motivating inferred the evi- be “the can it be dence that she have made influence” for the ride in to support order just and visit for the ride to be sociable was a Harper Further, with her cousin. As stated in the instructions long- * “* * agree James, Torts,1 All Law of sup- mentioned elements of fact not ob- occupant he ported is a where this case. From *6 pres- ride and his tains the benefits of the foregoing jury the I that the conclude ren- except the upon the host only possible ence confers none dered the or reasonable answer hospitality of and social rela- satisfactions made from the evidence in which could side, passenger tionships. contrary, On the the question. this case that on On by way money (and pays pas- as a not who a jury had the Ardith was found that fare clearly hospitality) not reciprocating of is finding would senger think a I ours.) (Emphasis a Florida guest.” supported not the evidence. that a rider’s similar facts held under issues, plain of Short statements of matter that as a status was of a jury of fact for determina- submitted law.2 laymen language of tion, in the stated verbosity, especially lawyer and not in Further, my opinion, in the record indi- complicated, indis- are where the facts jury that was confused cated - understanding pensable intelligent an guest or whether Ardith was a a issue of jury of by the and correct determination passenger for hire to the extent that had instructions, Long, drawn-out such issues. support been sufficient to a evidence facts. on based general in discussing the law passenger for finding that she a hire was are- in the case by the evidence disclosed not granted.3 jury trial should new confusing. highly clarify requested the court to its definitions stating he could not court refused but the was- U.R.C.P. Rule agree 50(b) that I places In some on evidence. comment of encourage the submission designed to compen- required that the- where jury issues controverted transpor- thereby for” the avoid “an inducement doubt, sation be creates evidence a. holding as required appeal tation, instruction of later same on a reversal Rodriguez, (Fla.). 1. Harper Torts, James, 446 Law of Vol. 41 So.2d 2. Yokum v. Chaplowe 16.15, 958; p. Stone, 2, Sec. v. Pows v. 13 Utah 2d 3. See Schweitzer 470, 201, separate ner, 188, 199, A. A.L.R. 119 Conn. 175 95 four 371 where Boyd Mueller, Ill.App. 303, 1177; jury opinions v. 320 that if each indicate Guyette, though even N.E.2d the instruc- Whitechat confused Anno, correct, 122 P.2d in tions a new trial should be Cal.2d granted. 10 A.L.R.2d 1351. may- mileage cost For the trial most efficient of law. motor matter vehicle, judgment gauged cannot be in verdict still direct terms miles after the per opinion gallon gasoline. being in so, his This a matter law the. evi- supported substantial lower court in case should have directed decision passenger-for- there was no occasion verdict that Here there was dence. hire judgment move for directed It knowledge situation. is common gasoline operation in of law for found cost of as matter less than operation. the aggregate conclude that since there was one-half cost of her favor. I made, confused, Obviously, therefore, concessions here, and on the no doubt evidence would data $2.00 I have favor, accepted plaintiff’s gasoline support transport I in- an judgment representing should be affirmed be- about think dividual 2% per mile, by imag- I find substantial cause evidence that cents stretch one’s pay- Ardith was ination such could constitute a who, requested,

ment one when HENRIOD, (concurring Justice to take a undertook relative on result). mile, cost, 2)4 per but cents excess mile, per per being 5 cents cents mile —7 *7 result, heartily I in the concur but accepted any ordinary minimum to drive opinion. advanced in the the reasons main vehicle. everyone In this case concedes that the sum to travel 72 consumed jury if it considered the The was asked n entirely gasoline. Such concession a passenger ride as asked girl who inescapable make should emphatic case the “No” In this quite as status were any accepted without should court, unnecessary. This nor the lower discussion, be- differentiating Hornbook n court,possibly naive, so under such The passengers. paying guests tween n circumstances, as to be disturbed toas be so sacrosanct system cannot (cid:127)passenger-for-hire relationship, stu- judge a learned trial to the attribute predicated Anyone on a motive. ordinary life. facts of plain, pidity car, driving including every member attempt here, an .be trial court, discovered, of which —and born arriving a result at judicial overindulgent in might indulged, notice —that taking when, by justice, overdid himself non- horns, presented he bull Here, jury. jury question matter in favor defendant.

resolved of fact which a determination

That was a de- been what should

substantiated matter of law of fact as a

termination should have ended the That court.

matter. to under- for this writer is difficult

It opinion why cogitate should main

stand here. problem non-existent Plaintiff, Respondent, SORENSEN,

Nabbie C. Appellant, Cross Morgan SORENSEN,

S. Defendant Appellant.

No. 9751.

Supreme Court of Utah.

Jan.