Sullivan v. DavisSullivan v. Davis
This is an appeal from a judgment ini favor of the plaintiff-appellee, Willie Mae Davis, rendered by the circuit court of Montgomery County.
Plaintiff’s action was brought against two defendants: Sullivan, the appellant, who was the driver of the automobile ini which Willie Mae Davis, the appellee, was. a passenger, and Boddie, who was the driver
The single issue presented by this appeal' is whether or not the plaintiff was a guest in the automobile of the defendant Sullivan,, at the time of the injury, within the meaning of the Code of 1940, Titlе 36, § 95. Appellant’s position is 'that Willie Mae Davis was a guest within the meaning of the guest statute above, and that he was not,, therefore, liable to her for simple negligence. The error with which the appellаnt charges the trial court was its refusal to-give two written charges; the first being the affirmative charge for the defendant without hypothesis; and the second, a charge that under the facts adduced at the-trial thе plaintiff was a “guest”.
There is virtually no conflict in the evidence concerning the plaintiff’s status ini defendant’s automobile at .the time of the accident. The plaintiff, a negro woman, is a practical nursе and had previously nursed the defendant Sullivan and members of his family. At the time of the accident, the defendant’s wife was a patient in a Montgomery hospital. On the date of the accident the defendant Sullivan’s daughter contacted the plaintiff and told her that the defendant’s wife, Mrs. Sullivan, was in the hospital and asked that she come to the hospital so that they might have a family conference relative to obtaining the plaintiff’s services to care for Mrs. Sullivan after she was discharged from the hospital. The plaintiff replied that she had no way to get to the hospital or back to her home. The defendant’s daughter told the plaintiff that she would pick her up at her home and take her to the hospital, and that her father, the defendant, would take her home after the conference. The plaintiff agreed to these arrangements and went to the hospital to see Mrs. Sullivan. At the hospital, the plaintiff agreed with the defendant, Mr. Sullivan, that when his wife was taken home from the hospital the next day, the plaintiff would serve her at her hоme as a practical nurse. After this agreement was reached the plaintiff left the hospital for her home with the defendant, Mr. Sullivan, operating the automobile. While the defendant was returning the plaintiff to her home, his automobile was engaged in a collision with the automobile of Boddie. This accident was the basis of the present action. Title 36, § 95, Code of Alabama 1940, is as follows:
“§ 95. Liable. only for willful or wanton misсonduct. — The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.”
Our statute, and most similar enactments in other jurisdictions, do not define the term “guest”. The definition of the pivotal term “guest” has largеly been left to judicial construction. The so-called “guest statute” was designed to provide relief for drivers of automobiles who had extended their hospitality to passengers, and were then subjected tо suit, under the common law, which held the driver responsible to his guests for a breach of duty to exercise ordinary care. Courts have generally held in determining who are “guests” within the meaning of such statute that they would not extend the influence of the statute beyond the evils which the legislature intended to correct. Blair v. Greene,
In 2 Restatement of Torts, 1273, Section 490 defines a “guest” as one carried gratuitously and who may not, therefore, recover under the guest statute for simple negligence, and a “passenger” as one transported for hire or reward. Wagnon v. Patterson, supra; Annotation,
A majority of this court concurred in that portion of the dissenting opinion of Livingston, J. [present Chief Justice], in Blair v. Greene [
“ * * * ‘ * * * following the precepts and rules of construction herein noted, the cases indicate, * * * that where the relationship between the parties is one of business and the transportation is supрlied in the •pursuit thereof for their mutual benefit, compensation has been given and the plaintiff is a passenger and not a guest.’ ” McCann v. Hoffman,9 Cal. 2d 279 ,70 P.2d 909 , 913, citing numerous authorities in support thereof.
“ * * * ‘The Legislature, when it used the word “guest,” did not intend to include persons who are being transported for the mutual benefit of both the passenger and the operator or the owner of the car, and, in determining whether the transportation was for the mutual benefit of both, not merely the act of transportation must be considered, but also any contract or relationship between the parties to which it was an incident.’ ” Kruy v. Smith,108 Conn. 628 ,144 A. 304 , 305.
Additional support of the above propositions may be found in Russell v. Parlee, supra; Peery v. Mershon,
“ ‘The general rule is that if the transportation of a rider confers a benefit only on the person to whom the ride is givеn, and no benefits other than such as are incidental to hospitality, good will or the like, on the person furnishing the transportation, the rider is a guest; but if his carriage tends to promote the mutual interest of both himself and driver for their common benefit, thus creating a joint business relationship between the motorist and his rider, or where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or service to thedriver on a trip which is primarily for the attainment of some objective of the driver, the rider is a passenger and not a guest.’ ” [Emphasis supplied.] Hasbrook v. Wingate, 152 Ohio St. 50 ,87 N.E.2d 87 ,10 A.L.R.2d 1342 .
To the same effect are the following cases: Bree v. Lamb,
“* * * In order to keep the person transported from being a gratuitous guest, it is not necessary that he should have paid or agreed to pay directly for his transportation or be a ‘passenger for hire’ in the lеgal sense of the term; and the payment or compensation which the carrier derives from the undertaking need not consist of cash or its equivalent, but may consist of some other substantial benefit, recompense, or return making it worth while for him to furnish the ride.” 60 C.J.S., Motor Vehicles, § 399(5)b, p. 1011.
In Blair v. Greene, supra, this court quoted the following statement from Humphreys v. San Francisco Area Council, etc., Cal.App.,
“ ‘If the excursion is not purely social, any benefit to the drivеr of the automobile conferred or anticipated or mutual benefit present or anticipated to the driver and the person carried is sufficient to take the case out of the automobile guest statute.’ ” [Emphasis supplied.]
The above statement, however, must be considered together with the general rule that a mere incidental benefit to the driver is not sufficient to take the rider out of the guest statute. The benefit conferred must in some degree have induced the driver to extend the offer to the rider. Further, courts have generally held that the benefit must be material and tangible and must flow from the transportation provided. Druzanich v. Criley,
In the instant case the relationship between the defendant driver and the plaintiff passenger was clearly that of prospective employer and employee. Thеre was no social relationship between the parties. It ■was the legal duty, as well as his pleasure, for the defendant to provide proper nursing care for his wife. The trip which resulted in the plaintiff’s injury was undertaken by the defendant and his daughter to facilitate negotiations leading to the employment of the plaintiff as a practical nurse for defendant’s sick wife. Under the circumstances of this particular case we cannot hold as a matter of law that no tangible benefit flowed to the defendant-appellant from the automobile trip, or that such benefit did not induce the defendant to transport plaintiff. Indeed, the evidence tends to indicate the contrary. It follows that the requested charges which are necessarily based on the converse premise were properly refused.
The judgment of the circuit court is due to be, and is hereby, affirmed.
Affirmed.