Opinion
No. 70-316 (Supreme Court No. 23350)
Decided August 25, 1970.
Action for personal injuries by passenger of automobile against driver and owner of automobile. From dismissal of actions on grounds that "Guest Statute" applied plaintiff appealed.
Reversed
1. AUTOMOBILES — Guest Statute — Plaintiff Accompanied — 15-Year-Old — Learner's Permit — Supervised Driving — Benefit — Constitute "Payment" — Plaintiff No "Guest." Where adult plaintiff accompanied 15-year-old driver, at his request and in accordance with terms of his Learner's Permit, and where the arrangement served no purpose of plaintiff's but rather benefited defendant in that plaintiff took an active role as supervisor of defendant's driving, plaintiff conferred a material, substantial, tangible benefit on defendant as is required to constitute "payment" under the "Guest Statute" and thus plaintiff was removed from her status as "guest."
Error to the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
Ralph A. Cole, for plaintiff in error.
Burnett, Watson Horan, Edward E. Carelli, for defendants in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here as they appeared below and will be referred to by their trial court designations. At issue is whether or not the trial court properly entered judgment of dismissal at the end of plaintiff's case.
Plaintiff's complaint arose from injuries incurred while riding in a car driven by defendant Robinson and owned by his grandmother, defendant Snyder. The action was dismissed on grounds that the Colorado "guest statute" (C.R.S. 1963, 13-9-1) barred her from recovery. We hold that plaintiff was outside the purview of the "guest statute" and so was not barred from recovery. Accordingly, we reverse judgment and remand the case for new trial.
As applicable to the instant case, C.R.S. 1963, 13-9-1, states:
"No person transported by the owner or operator of a motor vehicle as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his intoxication, or by negligence consisting of a willful and wanton disregard for the rights of others."
There is no evidence in this record indicating intoxication or wanton or willful disregard of plaintiff's rights on the part of defendant Robinson, nor that the accident was intentional; accordingly, those statutory exceptions allowing recovery by a guest do not apply. Plaintiff must, therefore, show "payment" within the meaning of the statute in order to recover.
There is undisputed evidence in the record that defendant Robinson, almost 16 years of age at the time of the accident, had obtained a learner's permit to drive, and that he had prevailed upon plaintiff, who, although desiring to attend to her own affairs elsewhere, reluctantly agreed to accompany him while he practiced driving his grandmother's car for a short time. As defendant well knew, the presence of a duly licensed adult accompanying one driving under a learner's permit is required by C.R.S. 1963, 13-4-5(1)(a). Defendant also knew that without plaintiff's consent to accompany him, which he actively solicited, he could not have lawfully driven the car at that time as there was no evidence presented that another such adult driver was available.
The record is clear that this arrangement served no purpose of plaintiff, and that she was more than just a passive occupant of the vehicle. She took an active role as a supervisor of defendant Robinson when she advised him against making an illegal left turn a few blocks before the accident in question. Robinson accepted her instruction and did not make the illegal turn.
Under these circumstances, the benefit conferred upon the defendant Robinson, at his insistence, was material, substantial and tangible, which is all that is required to constitute "payment" within the meaning of our "guest statute," and to remove a passenger from the status of "guest." While the facts made necessary differing results, the principle is set forth in Klatka v. Barker, 124 Colo. 588, 239 P.2d 607, and Dobbs v. Sugioka, 117 Colo. 218, 185 P.2d 784. In the face of undisputed evidence to this effect from defendant Robinson himself, as well as from other witnesses, the court erred in not so holding.
We do not find Folkars v. Brohardt, 142 Colo. 407, 352 P.2d 792, cited by defendant in support of affirmance of the instant judgment, to be apposite to the instant case. The fact situation in that case does not indicate any direct or sufficient benefit to the driver to be comparable to the case before us.
For the reasons above, judgment is reversed and the cause remanded for a new trial.
JUDGE DWYER and JUDGE DUFFORD concur.