Aсtion for personal injuries. From an order sustaining a demurrer to one part of his answer, defendant appeals.
The complaint avers as follows. In July, 1937, plaintiff, defendant, and two others planned a motor trip. Thе common intent was to travel from Omaha, Nebraska, to Florida and return, in defendant’s car. There was in advance an agreement that each would pay one-fourth of the cost of the needed gasoline and oil. Accordingly, each of the four did contribute to a fund from which those expenses were paid. In Florida plaintiff was injured in a collision caused by defendant’s negligence.
Defendant answered, admitting the cоmmon purpose of the parties and their agreement to share expense of gasoline and oil, but setting out the Florida “guest” statute as one defense. The demurrer to that defense was sustained.
1 General Laws, Florida, 1937, c. 18033, § 1, provides:
“* no persоn, transported by the owner or operator of a motor vehicle as his guest or passenger, without рayment for such transportation, shall have a cause of action for damages against such owner or operator for injury, * * * unless * * caused by the gross negligence or wilful and wanton misconduct of the owner or operator
*472 The one question now is whether plaintiff was being carried as a “guest or passenger, without payment for such transportation.” To our regret and embarrassment there is no Florida case to rulе construction. But many similar statutes of other states have been judicially construed. Determination of the fаctors distinguishing between a mere gratuitous guest or passenger on the one hand, and, on the other, one who makes “payment” for his transportation, has not resulted in unanimity of judicial expression. The statutes presеnt differences in phraseology which in some cases have been considered conclusive. Counsеl have been unable to reduce the decisions to a rational classification so as to put thеm in reconcilable categories.
We refrain from any such attempt and simply do our best to determinе the intention of the Florida statute. We shall attempt no review, or even complete citation, of the cases. That has been well done by others. See Clendenning v. Simerman,
At the outset, we do not consider оurselves at liberty to apply any rule of “strict construction” to this or any other statute, simply because it happens to be in derogation of common law. Legislatures intend by such statutes to replace or change rules of the common law. Too much judicial indulgence in “strict construction” of statutes has heretofore disguised “extraconstitutional obstacles to, or hindrances of, legislative purpose.” State еx rel. City of St. Paul v. M. St. P. & S. S. M. Ry. Co.
*473 To be within its reach, the rider in the car of another must not only be “guest or passenger,” but also riding “without payment for such transpоrtation.” It is significant that the thing determinative is not “hire” or “compensation,” but “payment.” “Compensation,” accurately used, means payment in money, or other benefit, which will compensate in the strict sense, that is, make even, or be measurably the equivalent of that for which it is given. Kerstetter v. Elfman, supra. “Hire” might apply only where both machine and driver are hired for the occasion.
The words of the Florida law can properly bе given no such narrow scope. Payment is all that is required. The amount of money or other thing constituting the pаyment need not compensate or make even, nor need it be given, in the technical sense, as “hirе” of driver and car. Any sum agreed upon as payment and paid, as under the facts presented by these pleadings, amounts to payment for transportation so as to prevent application of the statute.
That follows because the purpose of the agreement disclosed by the pleadings was on thе one hand to assure plaintiff and the other passengers the right to travel as such in defendant’s car on thе southern jaunt which all were to enjoy. In return, the benefit to defendant was the substantial reduction of three-fоurths of the amount which otherwise would have come out of his own pocket for fuel and lubricants. It is not pеrsuasive for the opposite view that he got nothing for use of his car or his own services as chauffeur. Thе money he received was nonetheless “payment” because it was not compensatory payment for all the items of car use and driving which defendant furnished. Payment for plaintiff’s transportation there was. That, in our view, was enough to take the case outside the operation of the Florida statute.
The demurrer was properly sustained, and the order is affirmed.