Albert McGann Securities Co. v. Coen , 114 Ind. App. 60 ( 1943 )

DISSENTING OPINION ON PETITION FOR REHEARING. I am in complete accord with the majority opinion (48 N.E.2d 58) on the questions presented by appellant's assignment of error. However, on a reconsideration of the authorities on the questions presented by the cross-errors assigned by appellee, I believe the majority opinion is not only against the weight of authority generally, but is in direct conflict with two recent decisions of our Supreme Court.

The term "guest," as used in Acts 1929, ch. 201, § 1, p. 679, amended by Acts 1937, ch. 259, § 1, p. 1229, § 47-1021, Burns' 1940 Replacement, has a narrow legal significance. Long v.Archer (1943), 221 Ind. 186; 46 N.E.2d 818, 822.

The ruling of our Supreme Court above referred to is in conformity with the long line of authority which holds that acts in derogation of the common law are to be strictly construed.Selvage v. Talbott (1911), 175 Ind. 648, 95 N.E. 114; Helmset al. v. American Security Co. of Indiana, Inc. (1939),216 Ind. 1, 22 N.E.2d 822; Ashbaucher v. Price (1925),83 Ind. App. 604, 145 N.E. 775; Concrete Steel Company v. MetropolitanCasualty Insurance Company of New York (1933), 95 Ind. App. 649, 659; 173 N.E. 651.

The majority opinion cites the case of Liberty Mutual Ins.Co. v. Stitzle (1942), 220 Ind. 180, 185, 41 N.E.2d 133, 135. This case appears to me to be in direct conflict with the majority ruling in the instant case. Judge Richman, in speaking for the Supreme Court in that case, said: "If the trip is primarily for business purposes and the one to be charged receives substantial benefit, though not payment in a strict sense, the guest relationship does not exist. Expectation of a material gain rather than social companionship must have motivated the owner or operator in inviting or permitting the other person to ride."

Applying the rule here laid down by our Supreme Court, I feel the allegations of Paragraphs 1, 2 and 3 of the complaint (the substance of each is set out in the majority opinion) show conclusively the purpose of the trip was primarily for business purposes and that the appellant was motivated by an expectationof material gain when he offered to take appellee to the meeting. I am of the opinion the paragraphs of complaint here under consideration are much stronger than those under consideration in the Liberty Mutual Ins. Co. case, supra, where the court said at p. 188: "We conclude that on this question appellant's complaint was sufficient to permit an inquiry into all the circumstances which, when developed by the evidence, may fill in the details of the sketch before us or may paint an entirely different picture." See also, Piercy v. Zeiss (1935), 8 Cal.App.2d 595, 47 P.2d 818; Bree v. Lamb (1935), 120 Conn. 1, 178 A. 919.

I feel, therefore, the petition for rehearing should be granted and the judgment of the trial court sustaining the demurrers to the first, second and third paragraphs of complaint should be reversed.

NOTE. — Reported in 48 N.E.2d 1000.