Taylor v. Taug , 17 Wash. 2d 533 ( 1943 )

¹ Reported in 136 P.2d 176. Dorothy Taylor, a minor, instituted this action through her guardian ad litem to recover damages for personal injuries sustained while riding as a guest in an automobile owned and operated by defendant. At the close of plaintiff's case, the court sustained defendant's challenge to the sufficiency of the evidence, and entered judgment dismissing the action. Plaintiff has appealed. The assignments of error are: In sustaining respondent's motion for a nonsuit and in dismissing the action.

The evidence relative to the activities of appellant and the group with whom she associated on the evening of the accident was given by Edna Dimbat, a resident of Portland, who was spending some time with friends at Long Beach. Her testimony shows that, about eight o'clock on the evening of the accident, she met respondent, Hal Caples, Lamar Caples, and Ernie Jacobsen at Marsh's tavern at the town of Long Beach, where they were engaged in drinking beer. She said that they planned to attend a dance at Raymond, and started for that city, but, after traveling a short distance, returned to the tavern at Long Beach, and then decided to go to a dance at "Oceanville," approximately eight miles away. Her testimony relative to drinking intoxicating liquor is as follows:

"Q. Now were you all drinking beer together there before you left Long Beach? A. Dorothy Taylor and the Tinker girl wasn't. Q. But you and the Caples boys and Mr. Taug were, is that correct? A. Yes I had been drinking some beer. Q. Did you drink any liquor there? A. No. Q. They didn't have any liquor there? A. No. Q. They hadn't a club license or anything like that? A. No. Q. Mr. Jacobsen and Mr. Taug and the two Caples boys and yourself were all together there drinking beer at the tavern? A. Yes and my other friends too. Q. And had you drank anything with them before you went in there? A. Well I had had a glass of beer at George Stokes' over at the Rendezvous, earlier in the evening. Q. All of you had? A. Yes."

Mrs. Dimbat testified further that respondent drove the car, one girl sitting beside him and the other four sitting in the back seat, with appellant sitting on the lap of the man on the left. Again she stated:

"Q. Do you know how far you had gotten on the way or how far you had been on the highway when Miss Taylor first made the remark to the driver? MR. DONLEY: Made what remark to the driver? MR. BOND: Q. Made any remark to the driver about his driving? A. I don't know just how far we were. I know it wasn't very long before she asked him — shortly after she asked him that he lost control of the car and we had the accident. Q. Well now when she first spoke to him about the manner of his driving or anything she said along that line tell us just what she did say. What did she say to him? A. I don't remember her exact words. She asked him to stop the car and let her out, that she was nervous, because she had just gotten over one accident and naturally she was still nervous from that and did not want to ride with him any more. Q. Did Miss Taylor say why she wanted to get out? A. Because he was driving so fast and reckless. . . . Q. Will you state whether or not Miss Taylor said anything in regard to why she wanted to get out of the car? Give us the whole conversation as you remember it. . . . A. Well, I don't remember just the exact words, only the fact that she asked him to stop the car and let her out because he was going so fast and she did not want to be in another accident."

On cross-examination, she testified:

"Q. Now when you started out from there [Long Beach] how far had you gone before you say that Miss Taylor said she wanted him to stop and let her out, a mile, two miles, three miles? A. Yes sir, just a guess it would be about two miles. Q. About two miles. The first complaint she made then was at a distance of about two miles. A. Yes. Q. And very shortly before the accident? A. Yes."

When the party approached the scene of the accident, it was approximately ten o'clock at night, and the weather was clear, except for occasional foggy stretches termed "fog banks." The road upon which the party was driving was newly constructed and covered with fine gravel. As they reached a point about three miles north of Long Beach, the respondent lost control of the car, causing it to plunge into a ditch on the left side of the road. As a result of the accident, appellant was severely injured.

It is admitted that she was a guest of respondent when the parties started on their journey to the dance.

Appellant testified that she did not remember what happened after she saw the boys enter the tavern.

[1] In this case, Rem. Rev. Stat., Vol. 7A, § 6360-121 [P.C. § 2696-879], applies. That statute, enacted in 1933, chapter 18, p. 145, Laws of 1933, reenacted in 1937, chapter 189, p. 911, § 121, Laws of 1937, reads as follows:

"No person transported by the owner or operator of a motor vehicle as an invited guest or licensee, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator: Provided, That this section shall not relieve any owner or operator of a motor vehicle from liability while the same is being demonstrated to a prospective purchaser."

Prior to 1933, this court held that the host driver of a car was only responsible for gross negligence. The evident purpose of the enactment of the statute just quoted was to prevent collusion between host and guest in order to defraud casualty insurance companies. The relationship of host and guest in its inception carries with it the concept of a gratuitous offer of service by a host, or a request for service on the part of a guest and an acceptance, followed by an overt act. While it cannot be held that the relationship is founded upon contract, still in its very nature it must be based upon a meeting of the minds of the host and the intended guest, followed by an act which manifests an intent to proceed with the journey.

[2, 3] Appellant contends that the relationship of host and guest ceased at the time appellant asked respondent to stop the car and allow her to leave it, and that from that time respondent was responsible for any injury caused to appellant through his negligence. Counsel for appellant base their contention upon the cases of Blanchard v. Ogletree, 41 Ga. App. 4, 152 S.E. 116, and Manser v. Eder, 263 Mich. 107, 248 N.W. 563.

The first case was

". . . a suit for damages on account of the homicide of the plaintiff's daughter, who was killed when an automobile which she had entered as the invited guest of the defendant, and which the defendant was driving, was overturned. The evidence as to the facts and circumstances attending the accident presented an issue as to whether the defendant was guilty of gross negligence at the time the accident occurred, the testimony being such as to authorize a finding either for or against the defendant on that issue. By an amendment to the petition it was alleged that the deceased had, prior to the accident, not only protested against the rate of speed at which the defendant was driving, but requested to be allowed to leave the car and return to Atlanta on the train, but that the defendant refused and disregarded the request, and continued to increase his rate of speed." (Italics ours.)

The court held:

"The court should have instructed the jury that if it was found from the evidence that the decedent had ceased to be the voluntary and gratuitous guest of the defendant, the duty would thereafter devolve upon him to exercise ordinary care for her safety."

It is of interest to note that the supreme court of Georgia has never passed on the question.

In the second case, the court considered evidence relative to the protest of a guest in order to ascertain whether the driver was guilty of wilful and wanton misconduct. It is quite clear that this case has no bearing upon the question presented.

We are unable to agree with appellant's argument or the reasoning of the cited cases.

In speaking of the host-guest statute, this court said inParker v. Taylor, 196 Wash. 22, 81 P.2d 806:

"The statute means that one who accepts another's invitation to ride in his car assumes the risk of all injuries, except thoseintentionally caused by the owner or driver, and, as to those, proof that he intentionally did the act which resulted in the injury is not sufficient to fix liability. It must be made to appear that he intended to injure." (Italics ours.)

The plain intent of the statute, as interpreted in the above case, is that, in order for a guest to recover from a host, it must be shown that the host driver, prior to an accident, conceived and acted upon a premeditated intent to injure his guest. There is no testimony in the present case which shows that respondent had any intent to injure the appellant.

This court has discussed the effect of the protest made by the guest in the cases of Wolden v. Gardner, 159 Wash. 665,294 P. 574; Wold v. Gardner, 167 Wash. 191, 8 P.2d 975;Zelinsky v. Howe, 163 Wash. 277, 1 P.2d 294; Dye v.Seattle, 173 Wash. 515, 24 P.2d 67; Quayle v. Knox,175 Wash. 182, 27 P.2d 115; Graves v. Mickel, 176 Wash. 329,29 P.2d 405. In none of these cases did we hold, or is it indicated that we intended to hold, that the relationship of host and guest ceased when the guest objected to the manner in which the car was being driven. The only purpose of the consideration of the question of protest was whether or not the evidence showed that the guest was guilty of contributory negligence in riding with a reckless driver.

The contention of appellant is answered by the quotation fromParker v. Taylor, supra, which we have set out. When appellant accepted a ride with respondent, she became a guest for the entire journey. To hold otherwise would nullify the plain wording and intent of the host-guest statute.

Admitting, arguendo, that the contention of appellant is correct, it is quite evident that the evidence was not sufficient to go to the jury upon that question. There is no evidence or inference from evidence that the statement made by appellant was spoken in a tone loud enough for the driver to hear, or that he refused to comply with her request. In other words, there was a total failure of proof that the driver heard this statement or that he refused any request made by his guest.

[4] The testimony of Edna Dimbat which we have set out shows that respondent and the two Caples had been drinking intoxicating liquor during the evening, and were so engaged at the time appellant and her girl friend came into Marsh's tavern. That the drinking of intoxicating liquor effectually destroys the faculties essential to safe driving, is of such common knowledge that no one with sense will submit to the peril of riding with a driver who has recently consumed liquor. Anyone who submits to that peril assumes the risk attendant upon the journey and is guilty of contributory negligence which precludes recovery. Appellant was a high school graduate and certainly must have appreciated the danger of riding in a car driven by one whom she had just seen drinking intoxicating liquor.

In Archer v. Bourne, 222 Ky. 268, 300 S.W. 604, it appears that, during a ride in a taxi, the driver took two drinks of whiskey in the presence of a passenger, who was thereafter injured when the automobile left the road and turned over. The court held that the passenger could not recover for the reason that she was contributorily negligent in riding with a driver who drank intoxicating liquor while driving a car. The case just cited and our conclusion are supported by the following cases:Franco v. Vakares, 35 Ariz. 309, 277 P. 812; Jones v.Pacific Gas Electric Co., 104 Cal. App. 47, 285 P. 709;Whitsett v. Morton, 138 Cal. App. 628, 33 P.2d 54; Richardv. Canning, 158 So. (La.App.) 598; Schwartz v. Johnson,152 Tenn. 586, 280 S.W. 32, 47 A.L.R. 323; Maybee v. Maybee,79 Utah 585, 11 P.2d 973; Thomas v. Steppert, 200 Wis. 388,228 N.W. 513.

Rem. Rev. Stat., Vol. 7A, § 6360-119 [P.C. § 2696-877], provides:

"It shall be unlawful for any person to operate any vehicle upon the public highways of this state while under the influence of or affected by the use of intoxicating liquor or of any narcotic drug. . . ."

We have held that one driving in violation of this statute is guilty of negligence per se. Burget v. Saginaw Logging Co.,197 Wash. 318, 85 P.2d 271.

By the same reasoning, we must hold that one who voluntarily rides with such a driver assumes the risk of the venture and contributes to the injury. This conclusion is borne out by the statement we have quoted from Parker v. Taylor, supra. This accident was simply the aftermath of a drinking party and, while appellant did not drink intoxicating liquor, she certainly knew that liquor was being consumed by the driver and others in his company.

We hold that appellant assumed the risk attendant upon the journey, and that she was guilty of contributory negligence. The judgment of the trial court was correct and is therefore affirmed.

BEALS, MILLARD, ROBINSON, and JEFFERS, JJ., concur.