Opinion
Wormwood, Wolvington, Renner & Dosh, Richard W. Laugesen, Jr., Denver, for plaintiff-appellant.
Yegge, Hall & Evans, Raymond J. Connell, Denver, for defendant-appellee.
DUFFORD, Judge.
This was a wrongful death action brought by the appellant and based upon the death of his daughter as the result of a collision which occurred while his daughter was riding as a passenger in a car owned and driven by the appellee.
Trial of this matter was before a jury. However, at the conclusion of the plaintiff-appellant's evidence, the defendant-appellee, relying on Colorado's Guest Statute, C.R.S.1963, 13--9--1, moved to dismiss the action on the ground that the appellant's daughter was a guest in the defendant's vehicle, and that the plaintiff's evidence was insufficient to present to the jury the issue of negligence consisting of a willful and wanton disregard of the rights of a guest passenger. The defendant-appellee's motion was granted, and judgment was entered in favor of the defendant and against the plaintiff.
It is from such judgment that this appeal is brought, the appellant contending that his evidence at trial established that his daughter was not a guest in the defendant's vehicle, or, alternatively, that whether she was or was not a guest was a question which should have been submitted to the jury. It is also the appellant's position that his evidence, viewed in the light most favorable to him, was sufficient to present a jury question as to whether the acts of the defendant consisted of willful and wanton negligence.
I.
In connection with his contention that his daughter was not an automobile guest of the defendant, appellant first contends that a joint venture existed between his daughter and the defendant. Our examination of the record reveals a void of any evidence which would indicate that at the time of the accident the appellant's daughter and the defendant were united in the pursuit of a common purpose for their mutual benefit with each of them possessing a right to control the operation of the automobile in question. These are the elements necessary to establish a joint venture in the operation of an automobile. Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185. To the contrary, the record establishes that the trip during which the accident occurred was made solely for the purpose of benefiting the appellant's daughter and was a gratuity on the part of the defendant. Such being the case, the trial court was correct in ruling, as a matter of law, that the appellant's daughter was a guest passenger in the defendant's vehicle. Mears v. Kovacic, 152 Colo. 362, 381 P.2d 991. II.
There was also no error in the trial court's ruling that the plaintiff's evidence proved, at best, simple negligence. It is without contradiction that at the time of the accident in question the defendant was traveling well under the relevant posted speed limits. Even considering the presence of certain storm-caused impaired road conditions, the defendant came upon these conditions suddenly, and there is nothing within the record from which a jury could infer that the defendant thereafter acted with a wanton disregard for the rights of others. Such being the record made in this case, if the trial court had denied the defendant's motion for a directed verdict and submitted the case to a jury, it would have been in error. Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038; Loeffler v. Crandall, 129 Colo. 384, 270 P.2d 769.
The judgment of the trial court is affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.