Grace D. Graham v. Jaime Luis Colon

CUMMINGS, Circuit Judge

(dissenting).

With all deference, I am unable to join in the majority opinion. Under the Indiana Guest Statute, the only express criterion for distinguishing a guest from a passenger is whether the transportation is “without payment therefor” (Burns’, Indiana Statutes Annotated, § 47-1021). The Supreme Court of Indiana has held that this guest vs. passenger question is a matter of law to be decided solely by the court. Allison v. Ely, 241 Ind. 248, 170 N.E.2d 371, 376 (1960). As both parties acknowledge, that holding was recently reiterated and applied in Knuckles v. Elliott, 227 N.E.2d 179, 181 (Ind.App.1967). Therefore, it was clearly erroneous for the District Court to submit this question to the jury.

Plaintiff insists that she was entitled to a mandatory instruction that she was a paying passenger as a matter of law, whereas defendant insists that he was entitled to a contrary mandatory instruction. In resolving these contentions, the purposes of the Indiana statute are highly relevant. The statute has a twofold purpose: (1) to relieve the harshness of the common law rule which required ordinary care to be extended to a recipient of the driver’s kindness and hospitality; (2) to avoid collusive suits of a friendly nature which would only be litigated if the defendant’s insurance coverage were adequate. Note, The Indiana Guest Statute, 34 Indiana Law Journal 338, 339-340 (1959). Being in derogation of common law rights, the statute is to be strictly construed for the benefit of the rider. See Stayner v. Nye, 227 Ind. 231, 85 N.E.2d 496, 499 (1949). In determining who are guests within the meaning of such statutes, the enactments should not be extended beyond the correction of the felt evils. 4 Blashfield’s Cyclopedia of Automobile Law and Practice, § 2292. In the present case the plaintiff scarcely knew the defendant, so that neither purpose of the Indiana statute is thwarted by holding it inapplicable to this trip. Furthermore, upon analysis, the Indiana authorities warrant a mandatory instruction for plaintiff.

Here the plaintiff and defendant were not friends, but had met only once, and briefly, a month before the trip from Cincinnati to Chicago. The ride was not a social relationship but merely an economical means for this then twenty-year-old college student to reach her destination. The pre-trip single conversation between the parties was strictly businesslike, fixing the time of departure and amount to be paid. At the very start of the trip, plaintiff handed defendant the pre-determined share of the gas money. No fraternizing or socializing occurred while the arrangements for the trip were being settled, thus negating any social purpose. Plaintiff had expressly agreed to pay defendant $3.00 to reimburse him for part of the gasoline expenses of the trip,1 so that plaintiff became a fare-paying passenger and the trip a non-social one. Allison v. Ely, supra, 170 N.E.2d at p. 379; 8 Am.Jur.2d, Automobiles and Highway Traffic, § 478, p. 45; 3 Indiana *171Law Encyclopedia (1967 Pocket Supplement), Automobiles, § 74, p. 60. It is only “where groups of friends or relatives make arrangements to travel together, [that] consideration must be given by the guest in excess of expenses incidental to the trip” to exclude the rider from the Guest Statute. Knuckles v. Elliott, supra, 227 N.E.2d at p. 183.

In Liberty Mutual Insurance Co. v. Stitzle, 220 Ind. 180, 41 N.E.2d 133 (1942), the plaintiff sued defendant for her negligent interference with the driver of an automobile, causing injuries to plaintiff. The complaint was adequate only if the plaintiff was a passenger rather than a guest. In upholding the complaint against a demurrer, the Supreme Court of Indiana noted that there was no monetary profit to defendant. Even though plaintiff was to pay defendant nothing for the Chicago trip, the guest relationship was thought not to exist, for defendant “probably would be enabled to furnish her home which was evidently the end she sought to attain” through the fully compensated interior decorator plaintiff’s accompanying her on the trip to Chicago (41 N.E.2d at p. 136). Since defendant there was to receive no fare or tangible compensation at all, the Stit-zle case leads to the conclusion that there was sufficient benefit to this defendant to remove plaintiff from the operation of the Guest Statute.

In Ott v. Perrin, 116 Ind.App. 315, 63 N.E.2d 163 (1945), the parties rode to work in the same plant, alternating in each other’s ears. Rides were exchanged due to the then prevalent gas shortage. It was held that the plaintiff was not a guest within the meaning of the Guest Statute even though the parties were friends who rode together every work day. Under the Ott case, this plaintiff, whose only ride with defendant, almost a complete stranger, was on the day of the accident, was a fortiori not a guest.

The only other Indiana case on which defendant relies is Lawson v. Cole, 124 Ind.App. 89, 115 N.E.2d 134 (1953), but there the court affirmed a verdict finding that plaintiff was a passenger even though he and defendant were co-workers and friends and even though the plaintiff had not made any sizable payments to defendant to cover the expenses of the trip.2

Applying the tests gleaned from the Indiana cases to the facts here, the District Court should have instructed the jury that plaintiff was a paying passenger as a matter of law. The court’s refusal to give a mandatory instruction that plaintiff was a paying passenger was not tantamount to passing on that issue as a matter of law, for the guest issue was tendered to the jury. Likewise, the refusal to grant plaintiff’s motion for a new trial was also not equivalent to passing on the guest issue as a matter of law, for that motion was based on various other grounds.

Plaintiff also complains that the District Court should not have given contributory negligence instructions to the jury, on the ground that there was no evidence of her contributory negligence. The only testimony bearing on this point is that plaintiff was looking out the side or back window when the accident occurred. Due care surely does not require a passenger to be staring ahead at all times during a long automobile trip. As stated in Horton v. Sater, 221 N.E.2d 452, 454 (Ind.App.1966), “an occupant may ordinarily rely on the assumption that the driver will exercise proper care and caution, and need not generally keep a lookout for approaching automobiles.” Insofar as the record or defendant’s brief shows, the jury was never told that plaintiff’s posture might have constituted contributory negligence, so that the contributory negligence instructions cannot now be sustained on that theory. Defendant did not even ask the expert medical witness whether plaintiff’s posture might have contributed to her injuries, nor was this ground raised in defendant’s brief. On this record, the *172plaintiff was entitled to an instruction that she was not contributorily negligent as a matter of law.

Since the jury rendered a general verdict for defendant, there is no way to ascertain whether the verdict was based on a finding that defendant was negligent, that plaintiff was a guest, that she was contributorily negligent, or a combination of these factors. Therefore, the case should be remanded for a new trial, but solely to determine whether defendant was guilty of negligence proximately causing plaintiff’s injuries.

. There being no fraud here, the adequacy of the consideration is not open to question. Farber v. National Forge & Iron Co., 140 Ind. 54, 39 N.E. 239 (1894). If either party defaulted, the other could sue for breach of contract. See Allison v. Ely, supra, 170 N.E.2d at p. 380 (dissenting opinion).

. Under rather similar facts, a jury ver-diet that the rider was not a guest was sustained in Kempin v. Mardis, 123 Ind.App. 546, 111 N.E.2d 77 (1953).