Smith v. Clute

Bliss, J. On July 19, 1935, the respondent was injured while riding as a passenger in an automobile owned and operated by the appellant between the cities of Missoula and Butte, in the State of Montana. At that time chapter 195 of the Laws of 1931 of the State of Montana was in effect and provided, so far as here material, as follows: “ Section 1. The owner or operator of a motor vehicle shall not be liable for any damages or injuries to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, nor for any damages to such passenger’s or person’s parent or guardian, unless damage or injury is caused directly and proximately by the grossly negligent and reckless operation by him of such motor vehicle. “ Section 2. Any person riding in a motor vehicle as a guest or by invitation and not for hire, assumes as between owner and guest the ordinary negligence of the owner or operator of such motor vehicle. “ Section 3. The ordinary negligence of the owner or operator of a motor vehicle as between owner and guest is imputed to any person riding in such vehicle as a guest or by invitation and not for hire.” In addition the title of the act stated in part that it was: “ An Act Releasing Owners and Operators of Motor Vehicles From Responsibility for Damages or Injuries to Gratuitous Passengers.” There were two other passengers in the car. All four occupants were young ladies who taught school together in the public schools of the village of Whitehall, N. Y. Some time in the early summer of 1935 they discussed going on an automobile trip to the western part of the country. According to the plaintiff, when the route had been decided, fifty dollars was contributed by each of the four, which went to pay for gas, tires, oil and incidental expenses. One of the young ladies other than the owner acted as custodian of the common fund, and the money was turned over to her. A repair bill to simonize the car before it started was paid out of this fund. Also, each of the four young ladies put in ten dollars and fifty cents before this trip started. The purpose of this contribution does not appear in the record except by speculation, but upon the argument in this court it was conceded that it was to purchase liability insurance. During the trip the operating expenses of the car were paid out of the common fund, and each of the young ladies bore [627] her own personal expenses. The respondent conceded that she and her traveling companions did not rent the car of Miss Clute, and that nothing was paid to the defendant for use of her car. The highway where the accident happened was about eighteen feet wide, comparatively smooth, straight and level. Miss Clute was driving and Miss Smith sat in the right rear seat with the car proceeding between thirty and thirty-five miles an hour on the right side of the highway. Piles of sand or gravel about eighteen inches in height had been observed along the side of the highway for a considerable distance. Before the accident the car had been driven through some of them. Another car proceeding in the opposite direction was met. As the cars came close together Miss Clute turned her car a bit to the right and in so doing ran into a pile of sand and gravel on the shoulder of the highway. The other car proceeded on without stopping, and Miss Clute’s car zigzagged into and out of the sand and gravel and finally stopped after traveling about forty feet. There was no contact between the cars, but when the Clute car went into the sand the respondent received a jolt and was thrown toward the front seat on the right, then back again against the rear right window handle and struck her back and side. When the car came to a rest the left wheels were partly on the macadam portion of the road and the right wheels were in the sand on the shoulder. Upon these facts the trial court charged that the defendant owed to the plaintiff the duty of reasonable care in the operation of the automobile, and refused to charge that there could be no recovery against the defendant unless the accident was caused by the gross negligence or reckless operation of the automobile by her. It held that the Montana statute did not apply. It was of the opinion that the four young ladies were engaged in a joint enterprise for their mutual benefit during the entire trip, which constituted each member thereof a coadventurer, and that the rights and liabilities between them were such as to preclude respondent’s status as a guest or one riding by invitation and not for hire within the intent of the Montana statute. There is a very serious question here as to whether this appellant was guilty of ordinary negligence in the operation of her automobile. Nevertheless, the jury has so found, and we are not disposed to disturb the verdict on that ground. The proof would not sustain a finding of gross negligence. We do, however, disapprove of the holding of the learned trial court that the Montana statute requiring a grossly negligent and reckless operation of the automobile as a condition precedent to liability did not apply. The respondent was riding in the appellant’s automobile by the appellant’s invitation, and not for hire. The appellant received no compensation [628] for transporting the respondent in her automobile. Merely because the respondent contributed her proportionate share of the actual operating expenses of the automobile does not constitute her a passenger for hire. There was no contract for transportation between these parties. Because the appellant voluntarily contributed the use of her car to the purposes of the journey, in addition to paying her own full share of the expenses, did not constitute her a carrier for hire. No decision of the State of Montana interpreting this statute has been called to our attention, and we are unable to find any. Some States have recognized the injustice of one accepting the benefits of an automobile ride as the guest of another and then bringing suit against his host for negligence, and have adopted similar guest statutes which limited the liability of the owner to gross negligence only. We had before us in Master v. Horowitz (237 App. Div. 237; affd., 262 N. Y. 609) a similar so-called guest statute of the State of Connecticut, and we there held that such statute applied under a state of facts quite analogous to the instant situation. A like conclusion was reached by the Appellate Division, Second Department, concerning the same Connecticut statute in Olefsky v. Ludwig (242 App. Div. 637). In that case the court held as matter of law that a contribution by the passenger toward the expenses of the operation of the car, such as gas, oil and garage charges, did not constitute payment for transportation within the meaning of the Connecticut statute, Other States have embodied the same principle into their common law by judicial mandate. For example, in Massachusetts the gross negligence rule prevails as to guest passengers by decision of the courts and not by statute. It has been there held that one who by agreement contributes only his fair share of the expenses of operation of an automobile, such as gasoline, oil and garage bills incurred for the common benefit of the guest and host, does not thereby enter into a contract to be transported as a passenger for hire. (Askowith v. Massell, 260 Mass. 202; 156 N. E. 875.) Any other interpretation of this quite common arrangement would, in many instances, result in a violation of the statutes with regard to the operation of an automobile for hire without the special licenses required of the owner and operator and the transportation without the proper chauffeur’s and omnibus licenses would be illegal. We should be loath to adopt such an interpretation as within the intent of the parties to the arrangement. The ordinary public liability policy would not cover such a risk, and the usual rule of reasonable care, which in our jurisdiction in the absence of special statutory provision defines the duty of the owner and [629] operator toward the passenger, would be changed to the duty of exercising the highest degree of care as required of a carrier for hire. We do not believe that these parties intended to make a contract of passage for hire with all of these possible results. Theirs was the simple relation of guest or invitee and host. The judgment and order appealed from should be reversed on the law, with costs, and the complaint dismissed, with costs. Hill, P. J., and McNamee, J., concur; Heffernan, J., dissents, with an opinion, in which Crapser, J., concurs.