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Dirksmeyer v. Barnes





Appeal by defendant from the Circuit Court of Calhoun county; the Hon. MAURICE E. BARNES, Judge, presiding. Heard in this court at the May term, 1954. Judgment affirmed. Opinion filed May 21, 1954. Released for publication June 7, 1954.


The appellee brought suit in the circuit court of Calhoun county against the appellant for damages occasioned by injuries to and death of appellee's intestate. The jury returned a verdict in favor of appellee in the sum of $9,900. Motions for judgment notwithstanding the verdict and for a new trial were denied and judgment was entered upon the verdict.

The complaint alleged that the plaintiff's intestate was a pay passenger in the automobile of the defendant and that the latter so carelessly and negligently drove his car that it ran into a telephone pole about eight feet from the edge of the pavement; that the defendant drove at an unreasonable rate of speed contrary to the statute, and propelled his automobile onto the shoulder at a time when his speed was so great that his car skidded and he negligently and carelessly lost control of the same which caused it to collide with the said telephone pole. There was no charge of willful and wanton misconduct.

The defendant-appellant here contends that the appellee failed: (a) to prove his decedent was a pay passenger and was therefore merely a guest towards whom the defendant owed no duty except not to willfully and wantonly injure him and (b) there was no proof of the negligence of the defendant.

The defendant, Milo Barnes, the plaintiff's decedent, Virgil Dirksmeyer, Dewey Barnes, Louis Howland, Marvin Howland, Wardell Willman and Raymond Smith worked in the Dow Chemical Company in Granite City. With the exception of Louis Howland all lived in the vicinity of Hamburg and Mozier in Calhoun county, a distance of eighty miles from their place of employment. Louis Howland lived at Wood River, a distance of twenty miles from the Dow Chemical plant. Sometime in April Dirksmeyer began riding with the defendant to and from work. The other occupants of the car also started to ride in the same automobile at approximately the same time. All paid the defendant at the rate of $2 a round trip, except Louis Howland who paid fifty cents. All were regularly employed five days a week and made their weekly payments to Barnes on Friday evening. Each made about $80 a week.

Appellant contends that under such state of facts the decedent was "a guest, without payment for such ride," within the contemplation of section 42-1 of the Motor Vehicle Act, being par. 58a, ch. 95 1/2, Ill. Rev. Stat. 1951 [Jones Ill. Stats. Ann. 85.064(1)], and because there was no charge of willful and wanton misconduct in the complaint the court should have instructed the jury to return a verdict in his favor. The appellant further contends that unless the compensation paid for the transportation was actually agreed upon, any expense money paid not substantially commensurate with the cost of the transportation did not take the cause out of the guest status fixed by statute.

[1-3] It has been repeatedly held by our courts and those of other states having a similar Act that a "guest" is one who the operator of a motor vehicle invites to ride with him as an incident of hospitality, companionship or the like without financial or other return except such casual benefits as may be extended as a part of ordinary courtesies; where, however, the relationship has a business aspect, as distinguished from a social one, which promotes the mutual interests of both the person carried in the motor vehicle and the driver, or, where the driver receives a tangible benefit monetarily or otherwise, which is the motivating influence for furnishing the transportation the rider is a passenger and the operator or owner is liable for ordinary negligence. (Miller v. Miller, 395 Ill. 273; Connett v. Winget, 374 Ill. 531; Perrine v. Charles T. Bisch & Son, 346 Ill. App. 321; Whitmore v. French, 37 Cal.2d 744, 235 P.2d 3; Miller v. Fairley, 141 Ohio St. 327, 48 N.E.2d 217; Kelly v. Simoutis, 90 N.H. 87, 4 A.2d 868.) In Scholz v. Leuer, 7 Wn.2d 76, 109 P.2d 294, it is said: "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."

The defendant, decedent and the other five occupants of the automobile were all employed at the same industry eighty miles distant from the homes of the defendant and five of them, and twenty miles from the home of the remaining one. The six occupants of the automobile paid an aggregate of $10.50 for each day's transportation, or $52.50 for a five-day week. The decedent paid $2 per day or $10 a week. These trips were not made for pleasure or social purposes. The arrangement or custom was not for an isolated, single or occasional transportation but had been in effect on the above paying basis for more than four months, five days each week. It comprehended continuous transportation to and from work. The amount of the payment, whether by agreement or custom was fixed, certain and substantial in amount. Even if inadequate, as appellant contends, it constituted an economic benefit to the defendant for the reason he was obliged to make the trip to reach his own place of employment.

Appellant contends that in the absence of an express agreement the compensation paid must be substantially commensurate with the cost and hazard of the undertaking. Whether the payments made in this cause were by reason of an express contract, an arrangement or a custom is of little consequence. They had been made regularly for over four months and in the absence of evidence to the contrary it will be presumed that there was an agreement to pay the sums above specified for the transportation to work and return, and that such arrangement was mutually satisfactory to all of the parties, including the defendant. In the absence of an express agreement the monetary compensation paid is not the sole test by which the relationship is to be determined. The jury had a right to take into consideration all the facts and circumstances involved including the social or business aspects of the trip, whether it promoted the mutual interests of both parties, the motivating influence for furnishing the transportation, and the economic benefit to the operator or owner.

Under the foregoing principles of the law and the facts in the record the jury was justified in finding that the decedent was a passenger of the defendant and not a guest.

It is further contended by the appellant that even though the plaintiff's intestate was a passenger for hire there was no proof of either the defendant's negligence or the due care of the decedent.

On August 28, 1951 at about 4:30 o'clock in the evening the defendant with his six passengers riding in a four-door sedan left their place of employment at Granite City on their homeward trip, traveling north on Route 67, a two-lane highway. There were three in the front seat, Barnes driving, Willman in the center and the decedent on the right, the remaining four being in the rear seat. At a point one mile from Hartford and 8 or 10 miles north of Granite City they approached a line of 6 to 10 cars going south on Route 67. It was then raining or drizzling rain. The pavement was wet. The shoulder at the east edge, somewhat wider than a car, was grassy and a little soft and wet. As the defendant's car, moving at 55 to 60 miles per hour, approached the string of cars, an automobile in the rear thereof, southward bound, pulled onto the northbound lane about five or six hundred feet north of the defendant's vehicle. Louis Howland said, "There comes a car." At the same time the defendant took his foot off the accelerator. When the two cars, traveling in the northbound lane, were from 100 to 300 feet apart, the defendant abruptly set his brakes. As a result, the car skidded and slipped and either skidded or was driven off the paved portion of the highway onto the east shoulder, traveled thereon for a distance of approximately 150 feet until the right rear end struck a telephone pole 8 to 10 feet east of the east edge of the pavement and stopped a few feet north of such pole. In the meantime, the southbound car passed on the northbound lane.

The five passengers all testified for the plaintiff. One of them, Dewey Barnes, knew little about the accident except that the car slid off the pavement, hit the pole and turned around. Louis Howland testified that the car skidded off the pavement onto the shoulder and hit the telephone pole. Again he said that he did not know that the car skidded near the pole. The witness, Willman, said that the car skidded before it went off the pavement, skidded after it hit the shoulder and also skidded when the defendant tried to get back on the hard road. Marvin Howland testified that the defendant abruptly set his brakes and locked the wheels so that they were not spinning and kept his foot on the brake until they reached or about reached the telephone pole, during which time the car skidded part of the distance. Raymond Smith said that the appellant put the brakes on heavy, the car sliding and skidding and "he wrapped it around that telephone pole." Again he said that the car ran on the shoulder 100 or 150 feet, skidded and the back end hit the telephone pole. At another point in his testimony the witness in replying to a question whether the car was driven on the shoulder of the road said, "I wouldn't say he was driving. When he hit the brakes, he went into a spin."

It was stipulated that the decedent died as a result of the injuries received in the accident. The foregoing is the substance of the testimony of the five passengers in defendant's car, no part of which is disputed, except that the witness, James Klug, testifying on behalf of the defendant said he did not believe ...

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