SCHOLZ v. LEUER

DRIVER, J.

Plaintiffs brought this action to recover damages for the death of their minor daughter, who sustained fatal injuries when the automobile in which she was riding collided with a truck.

Defendants' counsel, in order to narrow the issues at the trial, formally admitted in open court that James Gale, the driver of the automobile, was guilty of ordinary negligence, which proximately caused the girl's death. At the conclusion of the plaintiffs' case, the defendants also rested without offering any evidence. The jury returned a verdict for the plaintiffs. The defendants seasonably moved for directed verdict, for judgment notwithstanding the verdict, and for a new trial, all of which motions were denied. From a judgment entered on the verdict, the defendants have taken this appeal.

It was appellants' sole contention on their motion for a directed verdict, and it is their principal contention on this appeal, that, under the evidence, respondents were precluded from recovery by the Laws of 1937, chapter 189, p. 911, § 121 (Rem. Rev. Stat., Vol. 7A, § 6360-121 [P.C. § 2696-879]), the host and guest statute, which provides:

"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: . . ."

The pertinent facts may be summarized as follows:

In December, 1938, appellants John Leuer and Maiden Leuer married and went on a honeymoon trip. Mrs. Leuer then owned and operated an agency for the delivery of a daily newspaper on a route just outside the northerly city limits of Spokane. During her absence, with the use of her automobile, her nephew, appellant Gale, delivered the newspapers on this route. He started to make deliveries on December 25th (Mrs. Leuer accompanied him that day) and continued to do so daily to and including the ensuing January 1st.

Respondents' daughter, Evelyn Scholz, a fourteen year old, first-year high school girl, resided with her parents on a farm near Garfield, Washington. On Saturday, December 31st, Mrs. Scholz took Evelyn and her younger sister to Spokane for their respective piano and dancing lessons, and, late in the afternoon, they all went to the home of appellant Maiden Leuer, Mrs. Scholz's sister, to spend the night. Mrs. Leuer had not yet returned, but her mother and appellant Gale apparently were residing there during her absence.

Mrs. Scholz was the only witness who testified as to what transpired that evening. She stated, on direct examination, that appellant Gale and Evelyn had retired sometime near eight o'clock, but she did not go to bed until about eleven o'clock; that Evelyn, who occupied the same bed with her, was then asleep; that before Gale had retired, "He asked that Evelyn might go with him in the morning with the papers," but Mrs. Scholz told him she "would see"; that she had been awakened a little before midnight by the ringing of an alarm clock in the adjoining room, and very soon thereafter appellant Gale came to her door. Her testimony as to the conversation which then ensued was as follows:

"Q. Then relate to the Court and jury just what was said between you and Jim at that time, what he said to you and what you replied to him. A. Well, he asked me if Evelyn could go with him and I said, `Well, you don't need her.' I hated to awaken her in her sleeping. He said that she could help him on the route, for me to let her go, so I called her then. He said she could read the names of the carriers [customers] and would save him stopping to get the order of them. . . . Q. Now, thereafter, after you had this conversation which you related with Jim, what, if anything, did you do in regard to awakening Evelyn? A. I nudged her with my elbow and called her. Q. Did she awaken? A. Yes. Q. Did she leave then with Jim? A. Yes, they left then."

On cross-examination, Mrs. Scholz testified that, before they arrived at Mrs. Leuer's home, Evelyn had expressed a desire to go out somewhere on New Year's Eve and had particularly mentioned a public dance in Spokane, but she had declined to give her consent; that, sometime Saturday evening, Evelyn had suggested to appellant Gale that they go to a show, but he replied that he did not know the Sunday route very well, and he preferred to retire early in order to have "a clear mind" to deliver the papers.

Mrs. Scholz further testified, on cross-examination, as follows regarding the conversation which she had with appellant Gale when he came to the door of her room at midnight:

"Q. Do you recall just what it was he said? Did he ask you if you had made up your mind whether you were going to let her go, or ask you if she could go now, or what? A. Well, I think he came expecting me to wake her up to go with him. Q. And then he asked you if you were going to let her go, or words to that effect? A. Yes. Q. And it was at that time, then, that you made the statement, as I recall your testimony yesterday, something to the effect that he didn't need her or she would just be in the way, or something like that? A. Well, she wouldn't need to go, mostly because I hated to wake her up. Q. Do you recall just exactly what it was you said there? A. I think I said, `Jim you don't need her to go with you,' is about the words I used. Q. And then, as I understand you, he said, `Well, I would like to have her go she could help me by reading the book,' or something like that? A. Yes, he said he wasn't familiar with the Sunday route and it would save him stopping to see the names of the next customers. He said she could help him by reading the names on the route book. Q. That was advanced as sort of an argument to you to allow her to go, wasn't it? A. Yes. Q. Well, what happened then? Did you decide you were going to allow her to go? A. That was my final decision. If there had been any snow or the weather bad, I wouldn't have allowed her to go, but the weather was good and I thought there really wasn't any reason why she shouldn't go. Q. You knew she wanted to go? A. Yes. Q. So, then you awakened her, did you? A. Yes. Q. And what did you tell her, Mrs. Scholz? A. I just asked her if she wanted to go. Q. What did she have to say? A. `Sure.' Q. And then I presume she got up and dressed? A. Got up and left, yes. Q. Was there any other conversation there between you and Jim Gale or Evelyn? A. Well, my mother was there and I asked her if she thought it was safe to let her go and she said she did, they had never had any accident on the route. Q. That was all that was said there that evening? A. Yes, as I remember."

Appellant Gale testified substantially as follows regarding the assistance which Evelyn gave him on the paper route:

He drove the car, and Evelyn sat beside him. The newspapers were carried on the back seat in bundles of twenty-five, which were brought forward one at a time as needed and placed on Evelyn's lap. She also held the route book, in which the names of the customers were listed, one on each page in the sequence in which they were to be served. As they drove along, she leafed through this book and read off the names in order. The papers were delivered in the usual way, by depositing them in the tubular boxes which had been set up beside the highway for their reception. When a box was on Evelyn's side of the highway, she would open the car window, reach out and insert the paper; and if a box was on his side, appellant Gale would do likewise. Whenever her hands were engaged with the papers, Evelyn would place the route book upside down on the open lid of the glove compartment directly in front of her. As they were proceeding in this manner, at about two o'clock in the morning, appellant Gale brought the automobile in which they were riding into collision with the rear end of a truck, and Evelyn sustained the injuries which resulted in her death.

Appellants contend that it should be held, as a matter of law, that the restrictive provisions of the host and guest statute apply, because, they say, Evelyn went upon the trip for her own enjoyment, it being the only means open to her for the celebration of the New Year; the services she rendered were only an incidental, reciprocal favor on her part; and, above all, "the very essential element of a previous contract" necessary to take a rider in a motor vehicle out of the operation of the statute, was wholly lacking.

Respondents, on the other hand, maintain that appellant Gale took Evelyn with him primarily for the purpose of assisting him with his work, her carriage was chiefly to his advantage, and she did not, therefore, come within the bar of the host and guest statute under what may be called the benefit rule, which is concisely stated in the following paragraph from 4 Blashfield, Cyclopedia of Automobile Law and Practice (Perm. ed.), 80, § 2292:

"One important element in determining whether a person is a guest within the meaning and limitations of such statutes is the identity of the person or persons advantaged by the carriage. If, in its direct operation, it confers a benefit only on the person to whom the ride is given, and no benefits, other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes; but, if his carriage tends to the promotion of mutual interests of both himself and the driver and operates for their common benefit or if it is primarily for the attainment of some objective or purpose of the operator, he is not a guest within the meaning of such enactments."

[1] In support of their contention that a previous contract is necessary to avoid the host and guest statute, appellants cite, and particularly rely upon, Eubanks v. Kielsmeier, 171 Wn. 484, 18 P.2d 48, and Carboneau v. Peterson, 1 Wn.2d 347, 95 P.2d 1043. Both of those cases were concerned principally with the subject of joint adventure. In each of them, the court was called upon to determine whether the relationship between the driver of an automobile and an injured occupant was one of host and guest or of joint adventure. The court found, in each case, that the essential elements of a joint adventure had not been established, and, accordingly, applied the old gross negligence rule as the measure of the driver's liability in the Eubanks case, which was decided before the enactment of the host and guest statute, and invoked the "intentional accident" test prescribed by the statute in the Carboneau case.

In the latter case, it was said that a contract, express or implied, is an essential element, in fact the very "sine qua non," of the relationship of joint adventure; but such relationship is by no means the only available medium of avoidance of the host and guest statute. A person transported in the automobile of another may be without the bar of the statute and yet not be engaged in a joint adventure. Buss v. Wachsmith, 190 Wn. 673, 70 P.2d 417, 193 Wn. 600, 74 P.2d 999.

When the court is called upon to decide whether or not the statute applies to a certain factual situation, the problem, after all, is not primarily to classify or definitely identify the relationship between the operator and the occupant, but to determine whether or not the occupant was an invited guest or licensee within the purview of the statute. For the purposes of the instant case, the meaning of the words "invited guest or licensee" can best be ascertained by considering them in connection with the phrase which immediately follows in the statute, that is, "without payment for such transportation." The qualifying phrase limits the scope of "invited guest or licensee" by indicating plainly that gratuitous carriage only is intended. If there is payment for the transportation, the statute does not apply, and this does not mean that payment must necessarily be made in money. It is sufficient if the presence of the occupant directly compensates the operator or owner in a substantial and material or business sense, as distinguished from mere social benefit or nominal or incidental contribution to expenses.

Such is the construction which the courts in other jurisdictions have generally given to host and guest statutes substantially similar to the Washington statute. Sumner v. Edmunds, 130 Cal.App. 770, 21 P.2d 159; McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909; Russell v. Parlee, 115 Conn. 687, 163 A. 404; Knutson v. Lurie, 217 Iowa 192, 251 N.W. 147; Thomas v. Currier Lumber Co., 283 Mich. 134, 277 N.W. 857; Haas v. Bates, 150 Ore. 592, 47 P.2d 243; Albrecht v. Safeway Stores, 159 Ore. 331, 80 P.2d 62.

This court held in Dahl v. Moore, 161 Wn. 503, 297 P. 218, and Hart v. Hogan, 173 Wn. 598, 24 P.2d 99, where the gross negligence rule was involved, that a rider in an automobile was not a guest if his carriage conferred a tangible benefit on the driver and operated to their mutual advantage. Subsequent to the enactment of the host and guest statute, the court, in Buss v. Wachsmith, supra, held that the statute did not apply where the driver of the car and the injured rider were fellow servants (or master's vice-principal and servant, respectively).

In Syverson v. Berg, 194 Wn. 86, 77 P.2d 382, and Fuller v. Tucker, 4 Wn.2d 426, 103 P.2d 1086, the court held that the host and guest statute precluded recovery by the person transported under the circumstances there presented, but the requirements necessary to constitute payment for transportation such as to avoid the bar of the statute were specifically delineated. Such requirements are (1) actual or potential benefit in a material or business sense resulting or to result to the owner or occupant; and (2) that the transportation be motivated by the expectation of such benefit. It will be noted that these essential requirements, which are not, of course, intended to affect the joint adventure rules of the Carboneau case, do not include a previous contract or understanding between the parties relative to compensation for the carriage.

Applying these principles to the case at bar, it seems apparent that Evelyn's services were such as to confer upon appellants a substantial business benefit. Appellant Gale had 212 Sunday papers to deliver on a suburban route after midnight on New Year's day. There were approximately sixty more papers to deliver on Sunday than on week days, and he was not very familiar with the Sunday route. He had carried it at times in prior years, but had been over it only once before that season, on Christmas day, when Mrs. Leuer was with him. News is an ephemeral commodity, and timely delivery is a prime essential to the successful operation of a newspaper route. Manifestly, Evelyn's services expedited and facilitated the deliveries of the newspapers by appellant Gale and, therefore, constituted a tangible benefit to him and to his employer. Was the expectation of this benefit, then, the motivation or actuating consideration which induced appellant Gale to take Evelyn with him on the trip? That is the crucial question in the case so far as the host and guest statute is concerned.

It should be borne in mind, in this connection, that Evelyn was a fourteen year old girl, living with her parents, and, in the absence of her father, under the direction and control of her mother. All arrangements for her to accompany appellant Gale were made by him directly with the mother. Evelyn could not have gone without her mother's consent. He solicited such consent and finally obtained it on the representation that he needed Evelyn to help him with his work. The fact that Evelyn wanted to go, and that she may have regarded the venture somewhat as a New Year's lark, was, under the circumstances, of little moment, the intention and purpose of her mother and appellant Gale being the controlling factors. That the trial court took this view of the situation, is indicated by the following excerpt from its ruling on the motion for directed verdict:

"It is true that her parents were her directors and had control of her time and of her going and coming, and even if Evelyn had agreed with Mr. Gale to go with him and for the very purpose that it is contended here she was to go with him, that would be no controlling fact in the matter because the parents might have gone counter to her wishes and they might have said, just as her mother did say as to other things she wanted to do, that she couldn't. . . .

"But looking at it from the other point of view, namely, that the parents were the determiners of whether she should make the trip and the purpose for which she should make it, I think it is very clear that she was not merely a guest, but she was a helper. She was doing a service which this young man desired to have her do, even though childlike she might have been ready and willing to get up at midnight and go on a not very exciting or exhilarating journey.

"I think the facts here make such a case as the jury should be permitted to pass upon."

[2] Where, as in the case at bar, the sufficiency of the evidence is questioned, the evidence should be interpreted most strongly against the defendant and in the light most favorable to the plaintiff. The verdict of the jury should be permitted to stand if, so interpreted, there is any substantial evidence, or reasonable inference from the evidence, to sustain it. This principle is so well established in this jurisdiction as to scarcely require citation of supporting authority. Typical and comparatively recent expressions of the court appear in Buttnick v. J. M., Inc., 186 Wn. 658, 59 P.2d 750; Holm v. Investment Securities Co., 195 Wn. 52, 79 P.2d 708; Beck v. Dye, 200 Wn. 1, 92 P.2d 1113; Rice v. Garl, 2 Wn.2d 403, 98 P.2d 301.

[3] If the rule just stated means anything at all in a case such as this, it means that the jury had the right to determine the relative weight and emphasis to be given the direct examination and the cross-examination of Mrs. Scholz, and, viewing her testimony in the light most favorable to the respondents and within the bounds of reasonable inference, to render its verdict accordingly. Thus considered, the testimony warrants the reasonable inference that the moving consideration which induced appellant Gale to take Evelyn with him on the paper route was the expectation of the assistance which she would give him in the delivery of the newspapers. Evelyn was not, therefore, a guest without payment for her transportation within the meaning of the host and guest statute.

An analysis of the cases from other jurisdictions construing host and guest statutes, would unduly extend this opinion and will not be undertaken. The following authorities, although severally differing somewhat in factual detail from the case at bar, are considered to be substantially apposite in supporting the conclusion that the host and guest statute is not applicable to the instant case: Goldberg v. Cook, 206 Minn. 450, 289 N.W. 512; Dorn v. North Olmsted, 133 Ohio St. 375, 14 N.E.2d 11; George v. Stanfield, 33 F. Supp. 486; Haney v. Takakura, 2 Cal.App.2d 1, 37 P.2d 170; Albrecht v. Safeway Stores, 159 Ore. 331, 80 P.2d 62, supra. [4] Appellants assign as error the entry of judgment against Maiden Leuer and against the marital community composed of Maiden Leuer and John Leuer, her husband. They maintain that there is no evidence that appellants Leuer authorized appellant Gale "to employ any assistant or even to take on a passenger"; hence, as to them, Evelyn was a trespasser in the automobile driven by Gale, and they were nowise liable for her wrongful death.

It was alleged in the complaint, and admitted by the answer, that the newspaper delivery service and the automobile used in its operation were the sole and separate property of Maiden Leuer, and that, during the night of December 31, 1938, and the morning of January 1, 1939, she had employed appellant Gale "to conduct the delivery of said newspapers for her." The essence of the business of operating a suburban newspaper route is the delivery of the newspapers. Therefore, it may be said that, by the pleadings, it was admitted, in effect, that, during the time in question, appellant Gale was employed by Mrs. Leuer to conduct her newspaper delivery business for her. "Conduct," according to Webster's Unabridged New International Dictionary (2d ed.), means "to have the direction of; to manage; to direct; to carry on."

The undisputed testimony was to the effect that, at the time of the accident, appellant Maiden Leuer was away from Spokane, and, in her absence, appellant Gale had sole charge and control of her paper-route business. One who has been employed to manage a business has broad and liberal implied powers with respect thereto, including, inter alia, in the absence of an agreement to the contrary, authority to make contracts which are incidental, usual, or reasonably necessary in the conduct of the business; to engage and supervise such employees as may reasonably be required; and to direct the ordinary operations of the business. 1 Restatement of the Law of Agency, 173, § 73; 2 Am. Jur. 154, § 195. Appellant Gale, as acting manager of the paper-route business, had implied authority to take Evelyn with him as a helper.

[5] But there is another reason for upholding the judgment against appellant Maiden Leuer. It applies likewise to the judgment against the marital community and will also be discussed in that connection.

Throughout the proceedings in the trial court, the appellants were all represented by the same counsel, and pleaded jointly. They did not demur to the complaint on behalf of the community, nor did they move for dismissal of the community as a misjoined party pursuant to the provisions of Rem. Rev. Stat., § 308-2 [P.C. § 8676-5]. In the affirmative defense set forth in their joint answer, they alleged that "the said Evelyn Scholz was riding in said Plymouth automobile as the guest of these defendants, . . ." (Italics ours.) At the conclusion of the respondents' case, appellants' counsel moved for a directed verdict and, in support thereof, stated:

"We move the Court to direct the jury to return a verdict in favor of the defendants on the ground that the evidence as it now stands, in our judgment, shows that the deceased, Evelyn Scholz, occupied the status of a guest in the car at the time of the accident, and there is no evidence of intentional injury, nor even any claim of such in the pleadings. The only question in the lawsuit, as the Court can readily see, at this stage of the case is the question of the status of Evelyn Scholz at the time of the accident. If she was a guest, I think counsel concede that there is no case to go to the jury. MR. MUNTER: That is correct. MR. COOK: On the other hand, if she occupied a status which entitles her parents to recover upon proof of ordinary negligence, then, in my judgment, it is the duty of the Court to instruct the jury to return a verdict for the plaintiff and assess the damage."

The trial court evidently took this statement of counsel at its face value, for, in ruling on the motion, it commented only on the question of the status of Evelyn, and, in instruction No. 3, advised the jury that such question was the only one submitted for their determination other than the amount of damages. Not only this instruction, but also the instructions in their entirety submitted the case on the theory that the jury should find for or against the appellants as a whole. No exceptions were taken to the instructions in this respect. Instructions to which no exceptions are taken become the law of the case. Lally v. Graves, 188 Wn. 561, 63 P.2d 361, and cases therein cited.

The appellants did not, in their joint motions for judgment notwithstanding the verdict and for a new trial, nor, so far as the record shows, in any other way, request or suggest that the court differentiate between the appellants Leuer and appellant Gale in the entry of judgment. The appellants may not now broaden the issues by objecting to the judgment against Maiden Leuer and against the marital community on grounds that were not called to the attention of the trial court. The pertinent rule is stated in 4 C.J.S. 480, § 241, as follows:

"Where a case is tried without objection, upon the theory that the only issue is as to one question of fact, a party cannot urge, in the appellate court, that the evidence upon some other question of fact was insufficient to justify the verdict, and when parties submit a cause upon a single hypothesis, and expressly or impliedly agree that that point shall be the only issue in the case, review on appeal is limited to the single issue."

See, also, Belcher v. Young, 90 Wn. 303, 155 P. 1060; Mielke v. Miller, 100 Wn. 119, 170 P. 143.

[6] The appellants next contend that the trial court erred in giving its instruction No. 3. In that instruction, after advising the jury of the issues submitted for their determination, the court further instructed them:

"If you should find from a fair preponderance of the evidence that the status of said Evelyn Scholz was that of a mere invited guest or licensee, then there can be no recovery of damages by the plaintiffs and your, verdict should be for the defendants.

"But if you find that the situation of said Evelyn Scholz was not that of an invited guest or licensee but that her relation to the operator of the car was such as exists between a passenger and the operator of an automobile as a result of which tangible benefits accrue to the operator from the transportation by saving his time or facilitating his work, then your verdict must be for the plaintiffs."

The grounds of appellants' objection to the instruction are stated in their exceptions taken thereto at the trial as follows:

"The mere fact that benefits accrue to the operator of the car from the transportation is not in our judgment sufficient to invoke what is known as the benefit doctrine. But that is only one of the elements. Before a person is entitled to invoke such doctrine, a contract or agreement must be proved, as the rights of the plaintiff invoking such a doctrine sound in contract."

What has heretofore been said with reference to the benefit rule in relation to the host and guest statute, disposes of this contention of the appellants. As has been pointed out, where the relationship between the driver of a car and an occupant is not that of joint adventure, a prior contract between them is not essential to avoid the bar of the statute under the benefit rule.

[7] Finally, appellants complain of the amount of the verdict, which was for five thousand dollars (funeral expenses, $606.63; damages, $4,393.37).

When a verdict has been challenged as excessive, the only inquiry which will be made in this court is whether or not it was the result of passion and prejudice. Sherrill v. Olympic Ice Cream Co., 135 Wn. 99, 237 P. 14; Pryor v. Safeway Stores, 196 Wn. 382, 83 P.2d 241, 85 P.2d 1045. There is no affirmative showing of passion and prejudice on the part of the jury, and it can not, under the circumstances, be inferred from the amount of the verdict. According to the undisputed testimony, Evelyn was a strong, healthy child, exceptionally intelligent and talented, and the outstanding student of either sex in her highschool class. She was an accomplished musician and dancer, and was already receiving some compensation from younger children as a dancing teacher. She had been rendering substantial assistance to her mother with the household work.

In the case of Sasse v. Hale Morton Taxi Auto Co., 139 Wn. 359, 246 P. 940, a verdict of $3,833.50 for the wrongful death of a girl nearly nine years of age was upheld.

In 48 A.L.R. 817, there is an exhaustive annotation on the subject of excessive or inadequate damages for personal injuries resulting in death. Under subd. XXXIIIb, p. 846, will be found collected numerous cases in which verdicts substantially in excess of the verdict in the case at bar for wrongful death of minor girls were permitted to stand. The verdict will not be disturbed.

The judgment is affirmed.

MAIN, BEALS, MILLARD, and BLAKE, JJ., concur.