Opinion
No. 22795.
Decided June 29, 1970. Rehearing denied July 20, 1970.
Personal injury action by plaintiff to recover damages incurred while riding as a passenger in defendant's automobile. Judgment for plaintiff.
Affirmed.
1. AUTOMOBILES — Passenger — Injuries — Evidence — Guest — Statute — Exception — Admission — Opening — Jury — Lack of Merit. In action by plaintiff to recover damages for personal injuries sustained while riding as passenger in defendant's automobile, contentions of defendant — (1) that evidence does not support trial judge's ruling that plaintiff was excepted from guest statute as a matter of law, and (2) that plaintiff is bound by admission made during opening argument to jury that plaintiff was guest in car driven by defendant — are without merit.
2. Guest Statute — Derogation — Common Law — Strict Construction — Benefits — Host. The guest statute is in derogation of the common law rule which makes the operator answerable in damages for injuries suffered by a passenger in his car arising out of the operator's failure to exercise ordinary care; and, as such, must be strictly construed when determining whether its benefits are to be extended to a certain host.
3. Operator — Passenger — Relationship — Lack of Dispute — Guest Statute — Law. Where there is no dispute as to the facts of the relationship between the operator of an automobile and the passenger, the question of whether the operator is entitled to the benefits of the guest statute becomes one of law.
4. Home — Work — Transportation — Agreement — Payment — Defendant — Guest Statute — Lack of Protection — Usual Route — Other. In action by plaintiff to recover damages for personal injuries incurred while riding as passenger in defendant's automobile, where record reveals that defendant was driving plaintiff between her home and place of employment pursuant to existing agreement for payment by plaintiff to defendant of two dollars per week accident happened while plaintiff was being driven to airport on way home so that she might purchase ticket, held, status of plaintiff was clearly that of passenger who paid for transportation and defendant was not entitled to protection of guest statute; especially, since two dollars paid by plaintiff covered her transportation to and from work whether they went by usual route or by some route adopted by agreement of the parties.
5. PLEADING — Claims — Many — Consisting — Unnecessary. Under the rules of civil procedure a party may state as many claims as he has regardless of consistency.
6. TRIAL — Theories — Recovery — Guest — Wanton Conduct — Paying Passenger — Exception — Guest Statute — Admission — Negative. Where, in opening statement to jury plaintiff's counsel set forth two theories for recovery, namely, (1) that while plaintiff may have been guest in defendant's automobile, defendant was acting in wanton and wilful disregard for plaintiff's safety, and (2) that plaintiff was a paying passenger within exception to guest statute and that showing of simple negligence on part of defendant would be sufficient to establish liability, held, under the circumstances there is nothing in opening statement which could act as an admission binding on question of whether plaintiff was a guest or paying passenger.
Error to the District Court of the City and County of Denver, Honorable James Flanagan, Judge.
Wormwood, Wolvington, Renner and Dosh, Jack Kent Anderson, for plaintiff in error.
Walter L. Gerash, Richard J. Briskey, for defendant in error.
Sally Spoden, hereinafter referred to as the plaintiff, commenced a personal injury action against Deryn Eads, hereinafter referred to as the defendant, to recover damages incurred while riding as a passenger in defendant's automobile. At the close of the defendant's case, the trial judge ruled that at the time of the accident the plaintiff was not a guest under the Colorado Guest Statute (C.R.S. 1963, 13-9-1). Counsel for defendant conceded that there had been simple negligence on the part of the defendant, and the court directed a verdict against the defendant on the issue of liability. The issue of damages was submitted to the jury which returned a verdict for the plaintiff of $6,000.
The defendant contends that (1) the evidence does not support the ruling by the trial judge that the plaintiff was excepted from the guest statute as a matter of law, and (2) that the plaintiff is bound by an admission made during opening argument to the jury that the plaintiff was a guest in the car driven by the defendant. We do not agree with the contentions of error, and we affirm the judgment of the trial court.
I.
The plaintiff and the defendant lived in the same area in Denver and worked in the same shop. Several weeks prior to the accident, they entered into an agreement whereby the plaintiff would pay the defendant two dollars a week in return for conveyance between her home and place of work in the defendant's car. A few days before the accident, the plaintiff asked the defendant to drive her to Stapleton Airport on the way home so that she might purchase an airline ticket. The accident happened while the parties were proceeding to the airport along a different route and in a different direction from that they had previously taken when returning home from work.
[2-3] The Colorado Guest Statute is in derogation of the common law rule which makes the operator answerable in damages for injuries suffered by a passenger in his car arising out of the operator's failure to exercise ordinary care. As such, the guest statute must be strictly construed when determining whether its benefits are to be extended to a certain host. Green v. Jones, 136 Colo. 512, 319 P.2d 1083; Dobbs v. Sugioka, 117 Colo. 218, 185 P.2d 784. Where, as here, there is no dispute as to the facts of the relationship, the question becomes one of law. Dobbs v. Sugioka, supra.
In the instant case when the defendant was driving the plaintiff between her home and work pursuant to their existing agreement, the status of the plaintiff was clearly that of a passenger who paid for her transportation and the defendant was not entitled to the protection of the guest statute. Bridges v. Lintz, 140 Colo. 582, 346 P.2d 571; Houghtaling v. Davis, 140 Colo. 327, 344 P.2d 176. The two dollars paid by the plaintiff covered her transportation to and from work whether they went by the usual route or by some route adopted by agreement of the parties on the day of the accident. Certainly no money was refunded to the plaintiff for her transportation on the day of the accident, and she was just as much a paying passenger on that day as she was on any other day of the week. There was no change in their relationship; the paying passenger status of the plaintiff was never terminated.
There was no question of indirect or collateral benefits accruing to the driver in this case. Unlike the situation in cases such as Folkers v. Brohardt, 142 Colo. 407, 352 P.2d 792, cited by the defendant, where the only motivation was incidental, anticipated business benefit or in Klatka v. Barker, 124 Colo. 588, 239 P.2d 607, where the only motivation was personal satisfaction in benefiting the community, in this case there was an agreement for transportation contemplating regular weekly payments. Since the parties were admittedly proceeding home pursuant to that agreement, albeit by a circuitous route, we can find no error in the order of the trial judge directing a verdict against the defendant on the issue of liability.
II.
[5,6] In his opening statement to the jury, counsel for the plaintiff set forth two theories for recovery. The first was that while the plaintiff may have been a guest in the defendant's automobile, the defendant was acting in wanton and wilful disregard for the plaintiff's safety. The second was that the plaintiff was a paying passenger within the exception to the guest statute relating to payment for transportation, and that a showing of simple negligence on the part of the defendant would be sufficient to establish liability.
Our rules of civil procedure permit a party to state as many claims as he has regardless of consistency, and there is nothing in the opening statement which could act as an admission binding on the question of whether the plaintiff was a guest or a paying passenger.
The judgment is affirmed.
MR. JUSTICE KELLEY and MR. JUSTICE GROVES dissenting.