Scholz v. Leuer , 7 Wash. 2d 76 ( 1941 )

The majority opinion begins with a very full and accurate statement of the facts. Toward the end of the opinion, however, the majority draws a conclusion of fact which, ordinarily, would be of no moment, but which, in this case, has quite a bearing on the question of the authority of James Gale and leads to a result with which I do not agree.

No testimony was offered on the question of Gale's agency. The complaint, however, alleged, and the answer admitted, that Mrs. Leuer owned, as her sole and separate property, a business "consisting of the sale and distribution of newspapers" over a certain route, and that,

". . . in the course of conducting her said business of selling and distributing newspapers over the aforesaid newspaper route, the defendant Maiden Leuer did from time to time, and did on the night of December 31, 1938, and morning of January 1, 1939, employ the defendant James Gale to conduct the delivery of said newspapers for her." (Italics mine.)

It seems obvious that the pleadings alleged and admitted simply that James Gale was employed to deliver newspapers. The majority, however, concludes that

"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 deliverybusiness for her." (Italics mine.)

That conclusion, in my opinion, is unwarranted. While delivery of the newspapers undoubtedly constitutes an essential part of "the business of operating a suburban newspaper route," it does not follow that one employed to deliver newspapers thereby becomes the manager of the business, with power to employ assistants, incur liabilities, and fasten general obligations on the owner of the business. The fact, as I see it, is simply that James Gale was employed, not in the capacity of a manager toconduct the business of Mrs. Leuer, but merely as a newsboy todeliver the papers. This phase of the case will be referred to again a little later.

For the present, I shall confine myself to a consideration of what is termed the "benefit" rule, on which the decision in this case is rested. That rule is very clearly stated in 4 Blashfield, Cyclopedia of Automobile Law Practice (Perm. ed.), 80, § 2292, and is quoted in the majority opinion, as follows:

"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 asare 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." (Italics mine.)

As indicated in the opinion of the majority, the mere rendition of benefits by a passenger is, of itself, insufficient to take one out of the "guest" classification if the benefits are merely "incidental to hospitality, companionship, or the like." In resolving the question of benefits and the direction in which they flow, as well as their character and significance, a factor to be taken into consideration is the intention of the parties in entering upon the undertaking. If their actual and mutual purpose be to enter into a relationship other than that of host and guest, and their subsequent acts are not inconsistent with the intended relationship, the mere fact that, in the performance of the undertaking, the one party does nothing more than what a guest normally would do, will not convert the relationship into one of host and guest.

On the other hand, where the intended relationship is that of host and guest, the mere fact that benefits have been conferred upon the host will not change his legal status nor that of his guest. Thus, the motives which actuate the parties concerned constitute a primary consideration. Accordingly, when the "benefit" rule is invoked, the transportation must have found its impulse in some mutual understanding from which the carrier has the right to obtain, or expect, some material benefit to himself.

As further stated in the opinion of the majority, "the requirements necessary to constitute payment for transportation [the words which I have italicized being those used in the host-guest statute] such as to avoid the bar of the statute" are (1) that there be an actual or potential benefit in a material or business sense resulting, or to result, to the owner, or carrier, and (2) that the transportation be motivated by the expectation of such benefit. This court is now thoroughly committed to the rule which necessitates those two requirements. Syverson v. Berg, 194 Wash. 86,77 P.2d 382; Fuller v. Tucker, 4 Wash. 2d 426, 103 P.2d 1086. Even before the enactment of the host-guest statute in 1937, we had in effect declared the same rule. Dahl v. Moore, 161 Wash. 503,297 P. 218; Hart v. Hogan, 173 Wash. 598, 24 P.2d 99.

Under the first requirement above stated, the benefit to the owner or carrier must be one contemplating a "material gain," and not merely a social companionship (Syverson v. Berg, supra); it must be "an actual or potential benefit in a material or business sense," and not simply an accommodation rendered from "hospitable, neighborly and friendly motives only." (Fuller v.Tucker, supra.)

Under the second requirement, "expectation" of such benefit must be the motive prompting the transportation. For the purposes of this case, it is immaterial whether or not we consider the motive of Evelyn, the daughter, upon the particular occasion. Furthermore, whether we consider the motive of James Gale only, or that of Mrs. Scholz only, or whether we consider the motives of both James Gale and Mrs. Scholz, the result is the same, under the evidence, in this case. The proper test, however, in such situations is the intention, or motives, of both parties, whoever they may be, legally involved in the particular undertaking.

The majority opinion recognizes that a mutuality of purpose is required, for, in referring to the manner in which the arrangements for the trip in question were finally made, it is said in the majority opinion that Evelyn's wishes in the matter, or her idea of the purpose of the venture, were of no moment, "the intention and purpose of her mother and appellant Gale being the controlling factors." (Italics mine.)

Applying the principles stated above to the facts of the instant case, I am convinced that, from the record, no other conclusion is deducible than that Evelyn Scholz was a guest of James Gale within the meaning and purview of the host-guest statute.

The record is clear that, so far as Evelyn was concerned, and to the extent of her knowledge upon the subject, her only purpose in accompanying James was for pleasure and social companionship. Evelyn had previously expressed to her mother a desire to attend a dance, or some other New Year's Eve festivity, that night, but Mrs. Scholz had refused to give her consent. In the early part of the evening in question, Evelyn had suggested to her cousin, James Gale, that they attend a show. James, however, indicated that he did not wish to go. Later, during the course of the evening, both James and Evelyn importuned Mrs. Scholz to permit Evelyn to accompany James on the early Sunday morning trip. Mrs. Scholz did not give a definite answer to the request, but said that she "would see" about it. The two young people retired at about eight o'clock, Evelyn then "having hopes of getting to go along."

There is absolutely nothing in the record to indicate that those initial requests were based upon any need by James for assistance. It cannot be denied that Evelyn's desire to take the early morning trip in the automobile was prompted by the same desire for some youthful exhilaration as that which had prompted her requests to be allowed to go to a dance, or to be accompanied to a show. So far as the record reveals, she had no idea that James was to be "compensated" for taking her along. Prior to the time that she retired that night, nothing had been said by either James or Mrs. Scholz to the effect that Evelyn was to render any assistance whatever to James.

Also, it will be noted that, in the conversation between James and Mrs. Scholz at midnight, while Evelyn was still asleep, the only thing that was said with reference to what Evelyn was to do was that she "could help" James by reading the names of the customers on the route book, and thus "save him stopping to get the order of them." That was merely a statement of what she "could" do, not what she was required to do. Furthermore, there is no evidence that even that understanding was communicated to Evelyn. So far as she was concerned, the purpose of the trip had not changed from its original conception.

But even if it could be said, by reason of the conversation between Mrs. Scholz and James Gale at midnight, that Evelyn was supposed to read the names from the route book, that fact, of itself, was not sufficient to clothe Evelyn with the status of a compensating passenger. It was no more than what any guest upon such an occasion would readily have done. If such were not the case, then there could hardly ever be an instance of a "host-guest" relationship. The policy of the legislature in adopting the statute here involved was to do away with litigation arising out of situations such as that involved here. Shea v.Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998.

With reference to Evelyn's assistance by way of holding the papers in her lap and placing some of them in the tubular receptacles along the route, it is to be noted that there was no understanding or agreement, so far as the record shows, that she was required to do any of those things; that matter had not even been mentioned by anyone prior to the initiation of the trip. In any event, those acts were wholly gratuitous on her part, and were purely incidental to a venture that was merely one of social companionship.

Moreover, even if it be granted that "the intention and purpose of her mother" was a controlling factor, it is obvious, from the mother's own testimony, that the help to be rendered by Evelyn was an incidental consideration. Mrs. Scholz was in no way concerned with, or about, James Gale, or his work, when she granted Evelyn permission to accompany him. She was concerned only about Evelyn. She testified directly that, had the weather conditions been adverse, she would not have allowed Evelyn to go along; in other words, had the weather been such as to increase James Gale's need for help, the help would have been denied. Mrs. Scholz frankly admitted that she knew that the suggestion of Evelyn's helping James was simply part of an argument advanced by James to gain her consent. James was desirous of having Evelyn's company. Mrs. Scholz was naturally reluctant to awaken Evelyn at that early hour, or to permit her to be exposed to possible danger. The only real question in Mrs. Scholz' mind was as to the advisability of permitting Evelyn to accompany her cousin on the trip.

Even when interpreted most strongly against appellants, and in the light most favorable to respondents, the record fails to provide substantial evidence in support of the jury's verdict. To hold that the verdict is supported by substantial evidence herein, is, in my opinion, to abandon reason in favor of a tenuous, legalistic argument. From whatever point of view the matter be considered, it seems to me to be incontrovertible that Evelyn accompanied James simply for companionship and enjoyment, and that Mrs. Scholz and James, as well as Evelyn, knew that such was the purpose of the trip.

Furthermore, the authorities from other jurisdictions cited by the majority do not support its conclusion. Goldberg v. Cook,206 Minn. 450, 289 N.W. 512, involved a situation wherein, quoting from the opinion,

"Plaintiff by an arrangement with defendant before they left agreed to go along for the sole purpose of helping her. Defendant and her husband importuned plaintiff over a period of several weeks to go along. She refused for the reasons that the trip would serve no purpose of hers, inasmuch as she had been in California twice within recent years, that she preferred to be in her own home, where she lived happily and comfortably with her son and daughter-in-law, and that she could not afford whatever expense might be incident to the trip. The daughter desired her along to help her with the children on the trip, to be with her in Los Angeles, and help her get settled there. She finally agreed to go for the sole purpose of assisting her daughter in the respects mentioned." (Italics mine.)

In Dorn v. North Olmsted, 133 Ohio St. 375, 14 N.E.2d 11, the plaintiff rode with defendant for the sole purpose of pointing out to the latter the place where a certain man lived.

Likewise, in George v. Stanfield, 33 F. Supp. 486, the plaintiff, at the defendant's request, accompanied the latter to assist him in locating a certain place and a certain man.

Haney v. Takakura, 2 Cal. App. 2d 1, 37 P.2d 170, involved a situation wherein the defendant,

"Being aware that Mr. Haney [the plaintiff] was better informed than he on the subject of market conditions, . . . asked the plaintiff to accompany him to Oakland and aid him in securing the best available market in which to sell his oranges. The plaintiff agreed."

Finally, in Albrecht v. Safeway Stores, 159 Ore. 331,80 P.2d 62, the plaintiff accompanied his brother-in-law, at the latter's request, on an extended business trip, by automobile, over a mountainous road which was covered with a sheeting of snow and ice. Plaintiff had expressed a disinclination to make the trip, but finally went because his brother-in-law had insisted that "`he might need some help, and that his wife didn't want him to make it alone, and he wanted me to go along and help drive.'"

It will be observed that, in each of those cases, from all that appears in the opinions, the passenger accompanied the driver for the sole purpose of conferring some material benefit upon the driver. In other words, each case represents an extreme illustration of an unquestionably proper application of the "benefit" rule. Those cases do no more than to recognize the validity of the rule, the sufficiency of the benefit in each instance being unquestioned. Those cases cannot be considered authority on the crucial question in this case, that is, whether or not any benefit involved was incidental to companionship.

On the other hand, a case which is directly in point is Audiav. DeAngelis, 121 Conn. 336, 185 A. 78. The actual situation there involved is strikingly similar to that with which we are here concerned. In that case, the plaintiff was a fourteen year old boy, who had been in the habit of accompanying the defendant, a grocer, on delivery trips, in the latter's truck. It was undisputed that the youth at times assisted defendant in making deliveries. The substantial nature of the assistance rendered by the boy was indicated by the fact that defendant would occasionally "pay his [the plaintiff's] way into moving pictures and occasionally gave him some fruit." On the very day of the occurrence there in question, the plaintiff rendered a service to the defendant by going into a store to purchase an item for him. It was there held that:

"The only reasonable conclusion deducible from the evidence was that the rides, and the gifts as well, were given by Guido [the defendant] from hospitable, neighborly and friendly motives only and that the rides were accepted by the plaintiff purely for his pleasure; . . . The situation depicted by the evidence, viewedin aspects most favorable to the plaintiff, lacks . . . `such definite relations, contractual or otherwise, and . . . such tangible mutual benefits as the statute contemplates in order to remove the plaintiff from the status of a guest and the consequences attaching thereto.'" (Italics mine.)

In like manner, the record in the instant case convinces me that the trip was purely one of social companionship; that it was not within the contemplation of any of the persons concerned that Evelyn was to make "payment for such transportation," by the rendition of services; that the assistance which Evelyn did render was not primarily for the attainment of some objective or purpose of the operator of the car, but was merely incidental to a social venture; that the carriage did not tend to promote any mutual interests, nor was it motivated by any considerations other than social companionship; and that, in consequence, the relationship was one of host and guest.

Leaving that question, I return to the matter suggested in my opening remarks herein. I now desire to call attention to that portion of the majority opinion wherein it is stated flatly that

"Appellant Gale, as acting manager of the paper-route business, had implied authority to take Evelyn with him as a helper."

That statement is predicated upon the fact, as stated above, that it was alleged in the complaint, and admitted by the answer, that James Gale had been employed to "conduct" the delivery of the newspapers. The word "conduct" is then found to be synonymous with "manager," and Gale is accordingly held to have the broad powers of the "manager" of a business.

Even if it be granted that dictionary definitions are of sufficient weight to confer upon one hired to deliver newspapers the status of a "manager" of a business, it must still be kept in mind that the "broad and liberal implied powers" with which such a "manager" is endowed have a very definite limitation; they must be, in the language of the majority, "incidental, usual, or reasonably necessary in the conduct of the business." There is not a single word in this record which tends in any respect to establish that the use of an assistant was "incidental, usual, or reasonably necessary." There was no emergeny, and there was nothing in the alleged "help" rendered by Evelyn that was different from, or additional to, the very duties which Gale himself had been employed, and agreed, to perform. Respondents, as plaintiffs, of course, had the burden of proof. They not only failed, but they made no attempt, to meet that burden with respect to the point here under discussion. The authority of James Gale, as "manager," or otherwise, to employ, or to take along, an assistant was not established.

Under the holding of the majority opinion, every newsboy, and every operator of a motor truck, making delivery of newspapers or merchandise, may be regarded as a manager to "conduct" the business of his employer, and may engage another, or others, to help him do the very thing which he is employed to do, and for which he is being paid. If, as such "manager," the employee may engage the services of others, necessarily he may obligate his employer to pay for them, for one employed by a "manager" becomes an employee of the principal. And, finally, according to the logic of the majority opinion, the employer will not only become obligated to pay for the services rendered by an "assistant" who has been engaged by the employee, without the employer's knowledge or consent, but also, contrary to the fellow-servant rule, will become liable to the "assistant" for the negligence of the employee in the performance of work in which the employee and the "assistant" are commonly engaged.

I am unable to subscribe to the majority opinion, and therefore dissent.

ROBINSON, C.J., SIMPSON, and JEFFERS, JJ., concur with STEINERT, J.