Fernandez v. Kiesling , 1973 Tex. App. LEXIS 2393 ( 1973 )

BARROW, Chief Justice.

Appellant, joined by her husband, brought this suit to recover for personal injuries sustained when the automobile operated by appellee, and which was occupied by appellant, collided with the rear of a parked car. The jury found that appellee committed acts of ordinary negligence proximately causing said collision, but a take-nothing judgment was entered upon the jury’s finding that appellant was riding in said car as a guest.¹

Appellant, hereinafter referred to as plaintiff, urges three assignments of error. Plaintiff first urges that the trial court should have held as a matter of law that she was a passenger for hire; and therefore, no fact issue was raised as to the application of the Texas Guest Statute, Article 6701b, Vernon’s Tex.Rev.Civ.Stat.Ann. She next complains of the part of the court’s instruction relating to the issue as to her status in the car, wherein the court stated: “Payment or agreement to pay a share of the operating expenses of a vehicle in which one rides does not in itself make one a passenger for hire rather than a guest.” Plaintiff urges that this is a comment on the weight of the evidence in that she actually paid the agreed sum of 20 cents per trip and not a share of the operating expenses. Finally, plaintiff says that the trial court erred in instructing the jury that, “Such payment must be the motivating cause for furnishing the transportation.” She urges that it is sufficient for such payment to be “a motivating cause for furnishing the transportation.”

Plaintiff and defendant both worked for USAA, a large insurance firm. Around Christmas of 1968, defendant was approached by Mrs. Veronica Landine and asked if she would carry plaintiff, who was Mrs. Landine’s sister-in-law, to and from work. Defendant and Mrs. Landine worked in the same department and were acquainted, although defendant was not then acquainted with plaintiff. Plaintiff needed a ride, since the girl with whom she had ridden had gotten married, and Mrs. Landine knew that plaintiff lived near the defendant. Defendant advised Mrs. Landine that she was not interested in carrying passengers, but would do so temporarily until plaintiff could find another ride. At this time, defendant traveled the 3.4 miles from her home to work in her car along with her daughter who attended Trinity University, which is located near USAA. Defendant telephoned plaintiff at the request of Mrs. Landine and agreed to pick up plaintiff at 7:20 a. m. the next morning. Nothing was said at the time, but in a day or two, the parties agreed that plaintiff would pay defendant 20 cents each time she rode with her to help out with the car expenses. Sometimes plaintiff rode home with her husband and sometimes she missed work; and when this happened, such trip was not included in the total amount paid defendant each Friday. This arrangement continued until March 9, 1969, when the accident sued on herein occurred.

The rule was adopted in Texas in 1938, in Raub v. Rowe, 119 S.W.2d 190 (Tex.Civ.App.-El Paso, writ ref’d), that the mere payment of a share of the operating expenses of an automobile in which the plaintiff is riding does not make the plaintiff a passenger for hire or compensation within the meaning of the Texas Guest Statute. The rule uniformly followed in Texas since the Raub holding is that to remove a passenger from the provisions of the Guest Statute, a definite relationship must be established, and a definite tangible benefit to the operator must be shown to have been the motivating influence for furnishing the transportation. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (Tex.1952); Samoheyl v. Bearden, 448 S.W.2d 850 (Tex.Civ.App.—Houston [1st] 1970, writ ref’d n. r. e.); Autry v. Spiering, 407 S.W.2d 826 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n. r. e.); Dietrich v. F. R. Young Company, 400 S.W.2d 572 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.); Wills v. Buchanan, 358 S. W.2d 727 (Tex.Civ.App.—Fort Worth 1962, no writ); Easter v. Wallace, 318 S.W.2d 916 (Tex.Civ.App.—Fort Worth 1958, writ ref’d n. r. e.); McClain v. Carter, 278 S.W.2d 877 (Tex.Civ.App.—Galveston 1955, writ ref’d n. r. e.).

Carpool arrangements present a difficult problem for courts in that such arrangements usually contain both business and social elements. In Autry v. Spiering, supra, the Court held that where there was an agreement among several workers to take turns in furnishing the transportation to a well site where all worked, it could not be held as a matter of law that the occupant was a guest. See also: 10 A.L.R.3d 1087, Share-the-Ride Arrangement or Car Pool as Affecting the Status of Automobile Rider as Guest; 21 Sw. L.J. 567 (1967).

The testimony of defendant, when viewed under the “no evidence” test, is sufficient to raise a fact issue as to whether the 20 cents per trip was the motivating influence for defendant to furnish the ride to plaintiff. Defendant’s testimony, which was corroborated by Mrs. Landine, was that she was not interested in carrying passengers or in entering into a regular carpool arrangement. Further, it is seen that she did not carry any other passengers and specifically advised Mrs. Landine that she would only carry plaintiff until she found another ride. The jury could infer from these facts that the payment of the 20 cents per trip was merely a sharing of expenses as an incident of courtesy, and not the motivating influence for defendant to furnish the ride to plaintiff. Plaintiff’s first point that she was a passenger for hire within the meaning of the Texas Guest Statute is overruled.

Under her second point, plaintiff urges that the trial court erred in instructing the jury that payment of a share of the operating expenses did not in itself make one a passenger for hire, since there was no evidence that she had paid a share of the operating expenses. Since we cannot hold as a matter of law that plaintiff was being transported as a passenger for hire on the occasion in question, it necessarily follows that the trial court would have committed error by not giving this part of the rule. Wills v. Buchanan, supra; Easter v. Wallace, supra; Raub v. Rowe, supra.

Plaintiff’s final point presents the question of whether the definite tangible benefit to the operator must be shown to have been “the motivating influence for furnishing the transportation,” or merely that it must be shown to have been “a motivating influence” for furnishing same. We have found no Texas case which squarely discussed this question. However, of the many Texas cases wherein the effect of a sharing of expenses was considered, all courts but one,² including two opinions by the Supreme Court,³ and two cases wherein the application for writ of error was refused outright,⁴ have quoted the rule substantially in the following language : “To remove a case from the provisions of [the guest statute,] a definite relationship must be established and a definite tangible benefit to the operator shown to have been the motivating influence for furnishing the transportation.” (Emphasis added.) In Disney v. Cook, Okl., 457 P.2d 552 (1969), the Oklahoma Supreme Court, after a review of the Texas authorities, arrived at a similar conclusion that this was the rule in Texas.

Plaintiff apparently recognized that the Texas courts required that the tangible benefit to the operator be “the motivating influence for furnishing the transportation,” in that she couched the allegations in her petition in the language of such rule. In paragraph 3 of her petition, plaintiff alleged: “Plaintiff, in this respect, would further allege that without such payment every week, Defendant would not have transported Plaintiff herein, and that the motivating cause for Defendant to furnish transportation to Plaintiff was the sum which was paid each and every week during the time that this verbal agreement was in effect.” (Emphasis added.)

The instruction contained in Texas Pattern Jury Charges, 1 P.J.C. 3.10, p. 69 (1969), relating to “Sharing of Expenses” reads: “Payment or agreement to pay a share of the operating expenses of a vehicle in which one rides does not in itself make one a passenger for hire rather than a guest; such payment must have been a motivating cause for furnishing the transportation.” (Emphasis added.) However, there is no indication that the PJC Committee considered this distinction in that the authority cited under the instruction is Autry v. Spiering, supra, wherein the Court set forth only the rule as adopted by the Supreme Court in Burt v. Lochausen, supra, that the tangible benefit must be “the motivating influence for furnishing the transportation.”

The California Supreme Court in Bozanich v. Kenney, 91 Cal.Rptr. 286, 477 P.2d 142 (1970), expressly adopted the test of “a motivating influence,” rather than “the motivating influence,” and held that the trial court committed reversible error in giving the latter instruction. There is much merit in the discussion of the California Supreme Court in support of its holding that the payment should only be “a motivating influence” for the furnishing of the transportation to the passenger.

Nevertheless, the rule is well established to the contrary in this state by an almost unbroken, and even unquestioned, line of authorities since first adopted in 1938. Any change therein should be made by the Legislature or the Supreme Court. It is our duty as an intermediate court in our judicial system to follow the rule established by our Supreme Court. Swilley v. McCain, 374 S.W.2d 871 (Tex.1964); Stewart v. Janes, 393 S.W.2d 428 (Tex.Civ.App.—Amarillo 1965, writ ref’d, 383 U.S. 962, 86 S.Ct. 1233, 1372, 16 L.Ed.2d 304 [1966]); 15 Tex.Jur.2d, Courts, Section 137.

The trial court did not err in giving the instruction in the form expressly pleaded by plaintiff, and in the form uniformly approved by the Supreme Court since 1938. Plaintiff’s third point is therefore without merit.

The judgment is affirmed.

1 . Question No. 4A:

“Do you find from a preponderance of the evidence that on the occasion in question the Plaintiff, Mrs. Shirley Fernandez, was not riding as a guest of the Defendant, Mrs. Vivian F. Kiesling?

“ ‘Guest’ means one who rides in another’s vehicle through voluntary hospitality of the driver without payment or benefit of a tangible nature for such transportation. Payment or agreement to pay a share of the operating expenses of a vehicle in which one rides does not in itself make one a passenger for hire rather than a guest. Such payment must be the motivating cause for furnishing the transportation.

“Answer ‘She was not riding as a guest,’ or ‘She was riding as a guest.’

“We, the Jury, answer: She was riding as a guest.”

2 . Cate v. Holcomb, 370 S.W.2d 422 (Tex.Civ.App.—Texarkana 1963, writ ref’d n. r. e.). It is noted that Justice Davis cited only Gregory v. Otts, 329 S.W.2d 904 (Tex.Civ.App.—Fort Worth 1959, writ ref’d n. r. e.), wherein the test of Burt v. Lochausen, supra, is quoted with approval.

3 . Cedziwoda v. Crane-Longley Funeral Chapel, 155 Tex. 99, 283 S.W.2d 217 (Tex.1955); Burt v. Lochausen, supra.

4 . Hutcheson v. Estate of Se’Clirist, 459 S.W.2d 495 (Tex.Oiv.App. — Amarillo 1970, writ ref’d); Raub v. Rowe, supra.