Hastings, Chief Judge, Knoch, Senior Circuit Judge, and Cummings, Circuit Judge. Cummings, Circuit Judge (dissenting).
KNOCH, Senior Circuit Judge.
This cause arose out of an automobile accident. Plaintiff, Grace D. Graham, brought suit to recover damages from the defendant, Jaime Luis Colon, for injuries sustained by her because of his alleged negligence in the operation of his automobile in which the plaintiff was riding at the time.
Plaintiff appeals from the judgment for defendant entered on the general verdict of the jury. It is plaintiff's position that the Trial Judge erred in giving and refusing certain instructions.
Defendant, himself a student, testified that he had driven other students from Cincinnati to Chicago on several occasions. He described one incident when he had three passengers. On arrival at Chicago he found his gasoline had cost a little more than $12. He had divided that with the other three students by accepting contributions of $3 from each. On another occasion he had driven only one student and had accepted $3 from her.
He testified further that he had told other students that when he went to Chicago on certain weekends, other students might travel with him. He had a conversation, he said, with the plaintiff about two weeks before March 5, 1965, the date of the accident, in the course of which she asked whether he could take her to Chicago and what he would charge her. He had told her that on previous trips the several riders had shared the gasoline cost with him and that this had come to about $3 per person, but that if fewer riders came, he would say, "Just give me three dollars, so that you don't have the burden of the rest."
He stated that on all these trips he was going to Chicago whether or not he had other riders with him.
The plaintiff testified that she telephoned the defendant about two or two and one-half weeks before March 5, 1965, asked him if he were going to Chicago and how much he would charge, that he had said "three dollars" to which she replied "fine" and that she had given him the $3 when she boarded his automobile on March 5, 1965.
Plaintiff contends that these facts show an express contract for transportation between plaintiff and defendant for which plaintiff paid a cash consideration which rendered inapplicable the Indiana Statute in effect on the day of the accident, March 5, 1965, which provided:
The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, * * * [absent wanton or wilful misconduct] Acts 1937, Ch. 259, § 1, p. 1229, Burns' Indiana Statutes Annotated 47-1021.
The Trial Judge instructed the jury:
In order for you to find that plaintiff was a paying passenger in defendant's automobile, you must find that the transportation of plaintiff by defendant was motivated primarily by business reasons, as distinguished from hospitable, friendly, or other social motives. In other words, plaintiff's presence must have in some way directly compensated defendant in a substantial and material way, as opposed to providing a social benefit or incidentally contributing to the expenses of the trip.
Incidental benefits, even the payment of money by plaintiff to defendant, do not constitute plaintiff a farepaying passenger if her presence was due primarily to hospitable, friendly or other social motives, rather than business ones.
Expectation of a material gain rather than social companionship must have motivated the defendant in inviting or ...