*1 the impact upon minds of jury. argues: Counsel

“The erred in instructing stops that a jury vehicle after lawfully entering an intersection has over vehicles the right-of-way which subsequently enter the intersection.”

A fair reading of the court’s instruction leave hardly as whole could impression. We do believe that have under- could jury stood support contention, In selects instruction. she only small portion charge, court’s it is elementary portion lifted selected and out of the context whole instruction be read with thereof, and, done, must portions when that seems to us that instructed jury adequately duty rested both parties use due in view all the circum- care existing stances We regard. case. find no error in that Affirmed.

AGNES M. BURT v. EULALIA H. RICHARDSON. (2d)

87 W. 833. 37,183.

January 1958 No.

.336

Durham, Lasley, & for appellant. Swanson Stone, Barbeau, DeParcq, and Robert N. H. Donald T. William respondent. for

Magney, Commissioner. enter-

Defendant, Richardson, judgment from a appeals Eulalia H. ed against her. Burt, and Agnes 1955, plaintiff, evening spring

One M. husband, George and husband, Burt, Alfred her her P. met Richardson, years. had been for couples at a club. The friends H. the conversation. up vacation came in for the next winter’s Plans also planning to Florida. The Richardsons were fly Burts had to planned n intending to leave about couples Both were vacation. Florida Burt, the Burts said intended According they to Mr. same time. that, and intended to drive Richardsons said they and the fly, room, had would like driving plenty they were alone they basis. share-the-'automobile-expense aon go Burts with traveling including together, mutual advantages discussed They Burts share could some expenses; also saving couples. both As were advantage be an they driving, which friends and the Richardsons, Burts in- enjoyed company vitation was Richardson, accepted. According Richardsons to Mr. also had that, intended to fly when the Burts they not seen the drive, country before would like the Richardsons agreed to drive and take the This Burts with them. variance testimony seems immaterial.

During the trip Mr. Burt did driving, some of about 600 miles. While in Florida the decided Cuba, four to take a they side an took Express tour, American included all-expense everything but meals. The Burts for this paid joint tour out their bank account. The total cost of the $342.40 $171.20 tickets was each couple. for — Mr. Richardson kept an itemized of the automobile ex- statement pense $248.69 of the trip. $106.57 totaled included for gas oil, $82.12 windshield, broken balance tire new one replace damaged. $124.35. share completely The Burts’

On return accident involved in this action occurred Osage, near injured Iowa. the judgment Plaintiff recovered from. appealed

The only issue this appeal plaintiff is a guest whether was “for hire” under Iowa statute, the so-called Guest Statute. That in so far as it is here, material is follows: as

“The owner a or operator of motor shall vehicle not be liable for damages any passenger to or said person in riding motor vehicle ** as a guest by invitation not for hire Code of Iowa § 1954, 321.494. in

Since accident occurred the State Iowa, law of that state Johnson, 248 governs. Sharp 518, (2d) v. Minn. 80 N. W. 650. The jurisdiction statute “guest” foreign has considered been this by decisions, court in two neither of which is assistance here. Rothermel, 470, 205 353, Teders v. Minn. N. 286 W. In acci- Florida, in the State of has a happened guest dent statute. agreement held that under an plaintiff, This court to share the occupants automobile on a with Florida and three without such return, was not a transportation. this question court on and passed Florida later arrived at a The 338 (2d) 187. 748, 150 9 So.

contrary McDougald result. v. Fla. Couey, guest 512, 289 W. Cook, 450, In 206 Minn. N. Goldberg v. trans- As the plaintiffs statute of State of Texas involved. it benefit, distinguished court from portation was for defendant’s In that recovery. ordinary sharing expenses permitted case defendant assist the in making purpose with the children. 88, the Harris, plaintiff 276 345, 224 N. W.

In Sullivan v. Iowa pay all Minneapolis, was asked to ride with defendant to 90): 349, (224 The said Iowa N. W. expenses. an with Mrs. agreement her petition “In claimed she plaintiff Minneapolis, Mrs. Harris to accompany Harris she was to whereby drive for Mrs. Harris from time time she was to the car in is this plaintiff so to do. If sustained requested statute, but is ‘guest’ gov- allegation, governed her case is ordinary testimony cases. An examination of erned the rule in necessary.” therefore (224 Iowa on the and then said The court commented testimony 95): 276 W. * *

“* some statement should simple plaintiff do contract, assented make driving, it, does not plaintiff guest take statute.” does not case from under this (224 93): 355, 276 Iowa N. W. also * “* * should drive of the time suggestion plaintiff part The condition; ‘must’, even the nature of wasn’t but ‘should’. was not contract, used with that to the wasn’t dignity It didn’t amount mind, meaning into that under the and cannot tortured idea recover record, damages for the she even enable in this case.” claims understanding between the Burts the Richardsons relative *4 that, further the car went no than to if the say driving

to the the Burts together, Florida “could share some of the drove to parties arrangement the the Sullivan if, under facts in driving,” contract,” it, a as put dignity did not “amount

339 the facts in this case cannot either. surely approach dignity

The only Decker, other involving case driving is Porter v. assistance 222 Iowa 1109, 270 alleged N. that case W. 897. Plaintiff in he was act aas driver defend- relief load and unload help ant’s truck. The court held that this did from remove not the guest statute provisions because a courtesy it was rather merely employment. than Thus, statute, under the Iowa be- tween the under facts here as of the sharing driving to the not be a constituting so as to take compensation case out of the provisions the Iowa Guest Statute. Doherty 1264, 672,

In v. 227 Iowa Edwards, 1268, 674, 290 N. W. court said: * * “* Ordinarily where the only per- benefits conferred extending son the invitation are those incidental com- hospitality, panionship is a society, passenger guest. held be Where is a passenger guest or regarded social casual invitee he is usually even guest though he contribute toward the may something journey expected operate car part may Pickerell, 1076, 899; McCornack 225 trip. Iowa N. v. 283 W. Sullivan Harris, 345, 88; v. 224 Grohe, Iowa 276 N. Vance 223 Iowa W. v. 1109, 902; 274 739, W. 220 Clendenning Simerman, v. Iowa 263 N. 248.” N. W. supra,

In addition Edwards, v. statement Doherty supra, Simerman, Clendenning v. also holds that one in an au riding tomobile, who confers no benefit other driver than the mere “guest.” of his is a pleasure company, Iowa, sharing

Under of automobile law of ordinarily contributing does not render so person passenger Pickerell, 1076, 1081, 225 Iowa McCornack v. W. In hire. 901, the rule stated: held that has been the mere division of frequently “It riding members an automobile does render party among so been hire. has held contributing the person jurisdictions.” the courts of own court our that, decisions, the Iowa the pleasure is obvious under Thus, *5 340 we have under as driving facts sharing company, other’s are not here, sharing of automobile ordinary and the host destroy Such items do not constituting

benefits compensation. Iowa law. guest under relationship been a was to have the rider held cases, In several Iowa 215 Iowa Motor Co. v. Greenlease-Lied guest. and not a Bookhart Lurie, 217 Iowa 1359; v. 721, R. Knutson 8, 244 82 A. L. N. W. 1264, 290 N. W. 147; Edwards, 227 Iowa 192, v. Doherty 251 N. W. 622; (2d) 1294, 15 N. Motors, W. 672; 234 Iowa Thuente v. Hart 286; Stenberg v. 925, Newcom, 277 N. 224 Iowa W. Wittrock v. in those (2d) 452. As the facts 622, N. W. Buckley, 245 Iowa 61 those here, a facts discussion from the materially cases differ so profitable. not seem cases does 781, (2d) Owens, 81 N. W. is v. 248 Iowa

The latest Iowa case Haas members nurses and registered were 654. Plaintiff defendant Nurses, a polio which had scheduled of the State Association of ride might defendant if Des Plaintiff asked she workshop in Moines. in- her, plaintiff en route was with consented. While defendant, prior she with agreed jured. It was claim the transportation that she would trip, start of pay later.” was no as agreement settle There that defendant “we’ll asked returned home from the she hospital, the amount. plaintiff After much, seventy-five and she “Not much she owed said: defendant how stated that con- Defendant offered to paid. cents.” This was so, she that, and was told if wanted to do gas tribute to oil informed the amount later. appears she would as to represented split cents seventy-five four-way gas bill. 656): (248 Iowa court said 81 W. [2d] “* * * seventy-five evidence of this Beyond the cent payment, record is silent as definite and benefit tangible received car, defendant, plaintiff’s presence due to than her com- panionship. showing Neither is there evidence definite mutual resulting benefit defendant and tangible plaintiff, from Nor think plaintiff’s presence. do we additional payment seventy- tangible contemplated five cents is such substantial [Citing and our statute decisions by thereon. cases.]” is, however, There one the instant case distinguishing feature in in connection with must sharing-of-the-automobile-expense item. We determine its materiality. When their as to the Florida accompany that the Burts agreed the Richardsons on a total share-the-automobile-expense basis. The amount of such expense, according kept, to the record Mr. Richardson $248.69. such Usually arrangement sharing an consists gas cost of and oil But here it to have been only. mutually seems *6 to understood include expenses, and a windshield and additional new a new tire included, were items which used the up would be on not trip. The paid $342.40 Burts the for tickets that the took four of Cuba to and back air. trip This in the not minds of the parties when the arrangements initial were There nothing made.

record as the share Cuban trip or the that Burts were taking them their the Richardsons with guests without obligation financial the part on the Richardsons. the Apparently first time the question of the arose Cuban-trip expense was after the accident. The in the case as to how the only testimony the parties adjusted matter of given is that Mr. Burt as follows:

“Q. And as a result of you paying for that trip trip], Cuban [the did you Mr. Richardson more or less arrive at that the conclusion your paying for the from Florida trip to Havana constituted sufficient expenditures you didn’t an accounting need gas, on the and so oil forth? Well, so,

“A. I believe that is because after the accident—Mr. kept Richardson record of the the on after the trip —and everything was and I upset, accident asked figure Richardson Mr. said, him, what I owed and he T think out owe me you don’t anything said, the to Cuba.’ T trip after He think will your that cover amply the expenses.’ share of

“Q. words, the In other to Cuba offset what trips owed him you and oil? gas “A. Yes.” suggestion Mr. Richardson’s the

It was thus that cost Cuban so, and, doing car be his transportation applied expense, should share of he that he that cover thought “amply your would transportation Cuban expenses,” being cost of inference the one arrangement supplanted exceeded the This expense. car new Apparently trip planned. made when the Florida originally But, would offset other. parties expense intended that the one intended, Richardsons benefited parties actually whatever $46.85, Cuban their share of the extent of half cost So, if the intention of one-half of the total car expense. above car expense, expense was that the Cuban would offset fact intention, there that such was their still the can be no question $46.85. received a benefit extent of that the Richardsons remains substantial, benefit. definite, tangible This must be considered a Owens, supra, did consider the In Haas v. the Iowa court not car owner. tangible or benefit to seventy-five cents substantial transpor- $342.40 In the car received worth of instant owner the car owner $248.69 return cash If expenditure. car tation in cash, $46.85 would received the such sum certainly have ap- such It is tangible considered substantial owner. gift did since that the car consider Cuban parent owner expense. car If suggested applied he himself it be expense the car is not part expense equalled of the Cuban *7 why a reason is suggested a no gratuity payment, considered $46.85 if should considered a that the balance of should be gratuity in that represented make a The two sums payments, difference. the the of the car owner benefited to extent payments of exchange was a above, and in such sum substantial figure opinion mentioned our constituting compensation. tangible sharing of plaintiff At the claimed testimony, the close of the Statute. Iowa Guest Counsel the took case the out fact jury there was no issue for the agreed for sides both that —that ruled that was a plaintiff pas- the court was a law—and question item, $46.85 the based its on ruling hire. Whether court senger for disclose. does not record affirmed. Judgment

Knutson, Justice (dissenting).

I am unable to agree with reasons. this decision for number of In the first place, the case is theory now being disposed of on that was never mentioned at the trial and never considered trial court. The claim only trial, made at the by plaintiff time of and the one upon which trial court based its plaintiff decision that was a hire, for is found in motion at the plaintiffs close where plaintiff’s counsel said: “* * * the plaintiffs claim sharing takes them * * Statute, out of the *. Guest appears as law the matter of Court should that rule are Burts out from under the Guest Statute ** are they hire, because passengers for After listening arguments counsel, said: “I will rule that are they passengers for hire.”

In the next place, the decision is based inference me on an that seems wholly inconsistent with the evidence and contrary to directly intention of the parties. following direct testimony of Burt is the furnishing Mr. evidence in the only case help determining what did:

“Q. And as a result of you for did Mr. paying that you Richardson more or less arrive at the conclusion your piaying from trip Florida to Havana constituted expenditures sufficient you accounting gas, need an didn’t oil so forth? Well, so,

“A. I believe because after the accident —Mr. kept Richardson record trip after the —and accident and I everything upset, asked figure Mr. Richardson to said, what I he him, out owed T don’t think owe me anything you said, after to Cuba.’ He T think that will cover your amply expenses.’ share of the words,

“Q. you In other to Cuba what owed him offset gas and oil? “A. Yes.” (Italics supplied.) me the only

It seems to conclusion that can be drawn from is that one offset testimony this other and that it was a more go into detailed necessary account. If *8 overpayment had and that such overpaid claimed they that well might take the evidence guest statute, out of it testimony have been such claim was made. From the No different. other than any is difficult to see how can be drawn conclusion share paid all defendant had parties believed that been rested expenses nothing of the entire case more. Plaintiff’s circumstances proposition under the payment of of Statute. The above this case took them out of the Iowa Guest rea- opinion against proposition holds them on that finds another son, decision. by affirming not advanced parties, for did trip if it said that of Cuban

Even could be another exceed the the automobile there is still slightly expense of guest to why change plaintiff’s reason it could status from a not auto- with the passenger nothing for hire. The Cuban to do trip parties mobile traveled trip. separate from it. entirely air from contemplation Florida to Cuba. It was within the cases, a parties when the started. As I understand the Iowa coming car, to the take a owner of in order to out guest statute, passenger’s pres- must be a benefit from the arising automobile, out transac- arising ence in not benefit of some other If share defendant received benefit here in excess of plaintiff’s tion. side expenses, it was virtue nothing which had with the automobile If there was trip. to do overpayment, have ever claimed that such none of paid privilege riding extra amount was defendant for the reasons, these appears automobile. For to me decision of trial court is Iowa decisions and that reason contrary I dissent. respectfully Gallagher,

Frank Justice (dissenting). T. dissent Mr. Justice Knutson. I concur