Opinion
No. 3718.
July 7, 1938. Rehearing Denied August 12, 1938.
Appeal from District Court, Dallas County; Towne Young, Judge.
Action by Mrs. Bertha Raub against Miss Clara Rowe for injuries sustained while riding in an automobile owned and driven by defendant. From a judgment for the defendant, plaintiff appeals.
Affirmed.
Mrs. Bertha Raub, appellant, brought this suit against Miss Clara Rowe to recover damages caused by personal injuries. The injuries were sustained by plaintiff while she was riding in an automobile owned and driven by Miss Rowe. The defendant undertook to pass another vehicle on the highway traveling in the same direction, and while attempting to do so Miss Rowe's car overturned inflicting the injuries complained of. A general demurrer to the petition was sustained. The plaintiff declined to amend and her suit was dismissed. Those portions of the petition material to the consideration of the question presented read as follows:
"II. For cause of action herein plaintiff respectfully shows the Court that heretofore, to-wit, on or about the 17th day of April, 1935, the plaintiff, defendant and Miss Edna Rowe desiring to visit a relative, Ella Thompson, who resides in the City of Raymondville, Texas, departed from Dallas on said date having as their destination Raymondville. The plaintiff not having an automobile available for her transportation, contacted the defendant and Miss Edna Rowe and the defendant agreed to furnish her automobile for the transportation of the plaintiff and Miss Edna Rowe to Raymondville, the plaintiff and Miss Edna Rowe contributing their proportionate part of the expense of the trip, that is for the purchase of gas and oil for the automobile and the defendant was to contribute the use of her car and share a portion of the expense with the plaintiff and their companion of said trip, Miss Edna Rowe.
"III. After visiting in Raymondville as planned and departing on their return trip for Dallas, Texas, on the 21st day of April, 1935, and at a point about thirty miles south of Falfurrias the defendant, who was driving said car, in an effort to attempt to pass another vehicle on the highway, overturned inflicting the injuries to the person of plaintiff as will be hereinafter shown.
"IV. Plaintiff would further show the Court that at all times during the trip to Raymondville and from Raymondville toward Dallas the defendant, Clara Rowe, drove the automobile in which the plaintiff was riding. The plaintiff and their mutual companion, Miss Edna Rowe, were riding in the rear seat of the five passenger automobile. At no time during said trip or return did plaintiff exercise any control over the driving and manipulation of the automobile in which they were riding, and at no time did she have an opportunity to do so, since she was riding in the rear seat and the control and manipulation of the automobile was at all such times solely and wholly in the hands of the defendant, Clara Rowe.
"V. Plaintiff would further show the Court that at the point where the automobile overturned the road was very narrow with loose gravel shoulders. The defendant drove up behind another car and without warning or in any way conveying to the plaintiff her intention to swerve to the left and attempt to pass the car in front, she suddenly turned to the left and attempted to drive along side of the automobile proceeding in the same direction in front of the car in which plaintiff was riding and increased the speed in an effort to pass said car and due to the fact that the road was very narrow the left front wheel and the left rear wheel came in contact and rolled upon the loose gravel shoulders of the road, causing the car to overturn. Prior to the overturning of the car the defendant lost control of the same and it swerved across the road to the right-hand side and turned completely around facing in the direction from which they were driving before finally stopping in an overturned position. * * *
"VII. Plaintiff would further show to the Court that the defendant was guilty of gross negligence in the driving and operation of said vehicle at the time and on the occasion aforesaid, and that her conduct in the driving, manipulation, operation and control of said automobile was with an abandoned and reckless disregard of the rights and safety of the plaintiff as a passenger thereof in the following instances, which said gross negligence, abandoned and reckless disregard of the rights and safety of the plaintiff was a direct and proximate cause of the injuries and damages suffered by plaintiff as hereinafter alleged.
"A. The defendant was guilty of gross negligence in attempting to pass an automobile on said narrow, high crown asphalt highway without sufficient and ample room to permit the passage of said automobile without the left-hand wheel of her car getting off the asphalt or tarvia pavement onto the gravel shoulder, at a speed in excess of forty-five miles per hour.
"B. That the defendant was guilty of gross negligence in, after having followed said automobile which she attempted to pass for sometime and after it had become evident to her that said automobile was and would not move over and there was not sufficient room for her to pass and the four wheels of the automobile which she was driving remain upon the paved surface of said road, deliberately attempting to pass said automobile at a speed in excess of forty-five miles an hour.
"C. That said defendant, in attempting to pass an automobile on the narrow high crown highway, after her inability to do so for sometime and for a distance of over two miles and it was apparent that she could not pass said automobile without getting onto the loose gravel shoulder of said highway and crossing over the rough and jagged edges of the paved portion of said highway with both the front and the rear left wheels of her said car, recklessly disregarded the rights of her passengers in attempting to and in passing and going around said automobile on said highway at rate of speed in excess of forty-five miles per hour.
"All of which said acts of gross negligence and reckless disregard of the rights of the plaintiff and other passengers of the automobile of defendant, each of said acts acting independently and jointly and concurrently, directly and proximately caused the injuries and damages suffered by the plaintiff as hereinafter alleged."
Allen Allen, of Dallas, for appellant.
Bromberg, Leftwich, Carrington Gowan, of Dallas (Benjamin G. Habberton and W. C. Gowan, both of Dallas, of counsel), for appellee.
The question which first arises is whether the plaintiff was a guest of the defendant riding in the latter's car without payment for such transportation within the purview of Chapter 225, p. 379, Acts of the Forty-second Legislature, Article 6701b, Vernon's Texas Statutes, 1936. Whether the plaintiff, under the facts reflected by her pleading, is to be regarded as a gratuitous guest of the defendant has not been passed upon by the courts of this State so far as we are advised. Undoubtedly the plaintiff was such a guest unless it can be said the agreement on her part to pay the defendant the plaintiff's proportionate part of the cost of gas and oil for the operation of the car is to be regarded as constituting payment for plaintiff's transportation. The question has arisen in other states under statutes similar to our own statute, and it is quite generally held that an agreement on the part of the plaintiff to pay plaintiff's 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. Rogers v. Vreeland, 16 Cal.App.2d 364, 60 P.2d 585; McCann v. Hoffman, Cal.App., 62 P.2d 401; Id., 9 Cal.2d 279, 70 P.2d 909; Starkweather v. Hession, 23 Cal.App.2d 336, 73 P.2d 247; Ernest v. Bellville, 53 Ohio App. 110, 4 N.E.2d 286; Olefsky v. Ludwig, 242 App.Div. 637, 272 N.Y.S. 158; Smith v. Clute, 251 A.D. 625, 297 N.Y.S. 866; Master v. Horowitz, 237 A.D. 237, 261 N.Y.S. 722; Id., 262 N.Y. 609, 188 N.E. 86; Morgan v. Tourangeau, 259 Mich. 598, 244 N.W. 173.
In Rogers v. Vreeland, supra, it was sought to show plaintiff was not a guest within the contemplation of the California statute, by reason of the following alleged agreement:
"That at the time of the accident mentioned in this complaint the plaintiffs and the defendant, Richard Vreeland, were on a trip to see the wild flowers in the San Joaquin Valley, State of California, and that prior to commencing said trip an oral agreement was entered into between the plaintiffs and the defendant that the said plaintiffs would pay their share of the expense of running the said automobile and their share of any other expenses on said trip, and said agreement was in full force and effect at the time of the happening of said accident. Pursuant to said oral contract plaintiffs had [have] paid to the defendant their share of said expenses of said trip."
It was held plaintiff was such a guest in spite of the agreement quoted. The Court said:
"Running through the decisions in this state involving the `guest' statute is the element of material benefit to the defendant driver in the form of possible profits, where the elements of friendship and hospitality were not involved, and where the ride was taken as an integral part of a business transaction. * * * "Doubtless the Legislature intended to change the rule heretofore adopted in this state, that an invited guest could recover for simple negligence, and to provide that such a person could not recover in the absence of a showing of intoxication or willful misconduct; and we are of the opinion that the section is applicable to a case such as the one now before us, where the riders, on a trip purely social, and without any commercial or business element, agreed to pay their share of the running expenses of the automobile and their share of any other expense on the trip. We do not consider such an arrangement between the riders and the driver as the giving by the former to the latter of such compensation as removes the riders from the status of `guest' within the meaning of the act."
In McCann v. Hoffman, supra, the, Supreme Court of California said (70 P.2d page 912):
"The great weight of authority is to the effect that the sharing of the cost of gasoline and oil consumed on a trip, when that trip is taken for pleasure or social purposes, is nothing more than the exchange of social amenities and does not transform into a passenger one who without such exchange would be a guest, and consequently is not payment for the transportation or compensation within the meaning of the statute. It is obvious that if a different result obtains under any construction of the statute its purposes would be defeated and its effect annulled. The relationships which will give rise to the status of a passenger must confer a benefit of a tangible nature and are limited. * * * Therefore, where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given. But it is not given where the main purpose of the trip is the joint pleasure of the participants. The payment of a portion of the expense, as for gasoline and oil consumed on the trip, is merely incidental and does not constitute the moving influence for the transportation. The provocation for the offer of transportation remains the joint social one of reciprocal hospitality or pleasure."
It seems to us the rulings and opinions in the cases above cited are sound. We, therefore, hold the plaintiff was the defendant's guest without payment for her transportation. Under our statute the plaintiff is not entitled to recover unless the accident was intentional on the part of the defendant or caused by the latter's heedlessness or her reckless disregard of others. It is not alleged the accident was intentional. The phrase "or caused by his heedlessness or his reckless disregard of others" is construed as meaning gross negligence. Napier v. Mooneyham et al., Tex. Civ. App. 94 S.W.2d 564, writ of error dismissed; Pfeiffer v. Green, Tex. Civ. App. 102 S.W.2d 1077; Glassman v. Feldman, Tex. Civ. App. 106 S.W.2d 721; Hamilton v. Perry, Tex. Civ. App. 109 S.W.2d 1142.
In International Great Northern Railway Co. v. Cocke, 64 Tex. 151, Judge Stay, ton said:
"Negligence cannot be considered `gross' unless evidenced by an entire failure to exercise care, or by the exercise of so slight a degree of care as to justify the belief that the person on whom care was incumbent was indifferent to the interest and welfare of others."
In determining whether the defendant was guilty of gross negligence the general allegations contained in the petition that defendant was grossly negligent must be disregarded as mere conclusions of the pleader. The concrete facts alleged determine whether the defendant was grossly negligent in undertaking to pass the automobile in front of her. We do not think the concrete facts alleged show gross negligence. Fly v. Swink, 17 Tenn. App. 627, 69 S.W.2d 902, certiorari denied by Supreme Court; Aycock v. Green, Tex. Civ. App. 94 S.W.2d 894; Crosby v. Strain, Tex. Civ. App. 99 S.W.2d 659; Pfeiffer v. Green, Bledsoe v. Pfeiffer, Tex. Civ. App. 102 S.W.2d 1077; Glassman v. Feldman, Tex. Civ. App. 106 S.W.2d 721; Hamilton v. Perry, Tex. Civ. App. 109 S.W.2d 1142.
The facts alleged show nothing more than ordinary negligence on the part of the defendant, and since the plaintiff was a guest in defendant's car without the payment of compensation for her transportation no cause of action against the defendant is shown. The demurrer was properly sustained and the judgment of dismissal should be affirmed. It is so ordered.