Frisbee v. West, 132 S.E.2d 609, 260 N.C. 269 (N.C., 1963)
132 S.E.2d 609
260 N.C. 269
Clearman I. FRISBEE
Floyd Harvey WEST.
Supreme Court of North Carolina.
Oct. 9, 1963
J. Charles McDarris and Frank D. Ferguson, Jr., Waynesville, for plaintiff appellant.
Williams, Williams & Morris, Asheville, for defendant appellee.
The substantive rights and liabilities of the parties are to be determined in accordance with the law of Washington, the lex loci. Procedural matters are to be determined in accordance with the law of North Carolina, the lex fori. Nix v. English, 254 N.C. 414, 419, 119 S.E.2d 220, and cases cited; Knight v. Associated Transport, 255 N.C. 462, 464, 122 S.E.2d 64.
A Washington statute (Revised Code of Washington, Section 46.60.150) in pertinent part provides: ‘Every operator of a vehicle
on approaching public highway intersections shall look out for and give right of way to vehicles on his right, simultaneously approaching a given point within the intersection, and whether his vehicle first reaches and enters the intersection or not.’
The evidence most favorable to plaintiff tends to show defendant approached, reached and entered the intersection from Avila’s right; that Cook Road, on which defendant was traveling, was the main highway; that Avila’s car (proceeding north) was 500 feet south of the intersection when defendant’s car (proceeding west) was 500 feet east of the intersection; that the speed of each car when 500 feet from the intersection was 35 miles per hour; that each car continued at this speed up to the moment of collision; and that, as the cars approached the intersection, each driver had an unobstructed view of the other’s car.
There was plenary evidence as to the actionable negligence of Avila. Clearly, it was his statutory duty to ‘give right of way’ to the vehicle ‘on his right,’ to wit, defendant’s car.
A close question is presented as to whether, under legal principles established by decisions of the Supreme Court of Washington, plaintiff’s evidence was sufficient for submission to the jury as to defendant’s actionable negligence. In this connection, see inter alia, [260 N.C. 272] Massengale v. Svangren, 41 Wash.2d 758, 252 P.2d 317; Bos v. Dufault, 42 Wash.2d 641, 257 P.2d 775; Bellantonio v. Warner, 47 Wash.2d 550, 288 P.2d 459; Robison v. Simard, 57 Wash.2d 850, 360 P.2d 153. However, for reasons stated below, a determination of this question is not necessary to decision on this appeal.
The host-guest statute of Washington (Revised Code of Washington, Section 46.08.080) provides: ‘Liability of host for injury to guest in motor vehicle. No person transported by the owner or operator of a motor vehicle as an invited guest or licensee, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator, or the result of said owner’s or operator’s gross negligence or intoxication, and unless the proof of the cause of action is corroborated by competent evidence or testimony independent of, or in addition to, the testimony of the parties to the action: Provided, That this section shall not relieve any owner or operator of a motor vehicle from liability while it is being demonstrated to a prospective purchaser.’
There was no evidence the accident was intentional on the part of defendant or that it resulted from defendant’s gross negligence or intoxication. Plaintiff’s testimony was not corroborated by competent evidence or supported by independent or additional testimony.
Admittedly, when the collision occurred, both plaintiff and his brother (Doyle Frisbee) were passengers in the car owned and operated by defendant. (Note: Plaintiff testified he had never driven a car.) Nothing else appearing, the relationship subsisting between plaintiff and defendant was that of guest and host. It was incumbent upon plaintiff to allege and prove facts sufficient to show that the actual relationship subsisting between plaintiff and defendant when the collision occurred was not that of guest and host within the meaning of the statute. Moen v. Zurich General Accident & Liability Ins. Co., 3 Wash.2d 347, 101 P.2d 323; Fuller v. Tucker, 4 Wash.2d 426, 103 P.2d 1086; Hayes v. Brower, 39 Wash.2d 372, 235 P.2d 482, 25 A.L.R.2d 1431; Nielson v. Harkoff, 47 Wash.2d 205, 287 P.2d 95. The Washington decisions appear to be in accord with the general rule stated in Blashfield, Cyclopedia of Automobile Law and Practice, Permanent Edition, Volume 9C, § 6146, as follows: ‘Automobile guest statutes, widely prevalent at the present time, preclude an injured guest from recovering against the host for ordinary negligence, and for this or other reasons, the occupant of a motor
vehicle involved in an accident may seek to prove that he was not a guest, but on the contrary had some status other than that contemplated[260 N.C. 273] by the statutes, and in this situation the burden of proof is upon the plaintiff.’ See also Blashfield, op. cit., § 6115.
Under Washington decisions, the host-guest statute does not apply (1) if the passenger and the owner-operator are joint adventurers or (2) if the passenger pays for the transportation.
‘The essential elements of a joint adventure are, first, a contract, second, a common purpose, third, a community of interest, and fourth, an equal right to a voice, accompanied by an equal right of control.’ Moen v. Zurich General Accident & Liability Ins. Co., supra. ‘The sine qua non of the relationship is a contract, whether it be express or implied. As a legal concept, a joint adventure is not a status created or imposed by law, but is a relationship voluntarily assumed and arising wholly ex contractu. The essence of a contract is that it binds the parties who enter into it, and, when made, obligates them to perform it, and failure of any of them to perform constitutes, in law, a breach of contract. A mere agreement, or concord of minds, to accompany one another upon an excursion, but without an intent to enter into mutually binding obligations, is not sufficient to create the relationship of joint adventure.’ Carboneau v. Peterson, 1 Wash.2d 347, 95 P.2d 1043, 1054.
‘It is well settled that the factual requirements necessary to constitute payment for transportation, and thus avoid the bar of the statute, are: (1) An actual or potential benefit in a material or business sense resulting or to result to the owner or operator of the automobile, and (2) that the transportation be motivated by the expectation of such a benefit.’ Woodland v. Smith, 56 Wash.2d 552, 354 P.2d 391, and cases cited.
Numerous decisions relating to the host-guest statute of Washington are cited and discussed in articles by John W. Richards, Professor of Law, University of Washington, published in 15 Washington Law Review 87 et seq., and in 24 Washington Law Review 101 et seq.
Plaintiff alleged he and defendant, while in Haywood County, entered into an agreement with reference to the trip from Waynesville to Sedro Woolley, and plaintiff’s evidence tends to support this allegation. This statement in plaintiff’s brief is in accord with his allegation and evidence: ‘As per the agreement between plaintiff Frisbee and defendant West for the trip from Waynesville, North Carolina, to Sedro Wooley (sic), Washington, Mr. Frisbee paid the expenses of gas and oil for the automobile, and lodging and food for both, in the amount of something over three hundred ($300) dollars.’ Unquestionably, if the accident had occurred in the course of the trip from Waynesville to Sedro Woolley, the facts alleged by plaintiff and supported[260 N.C. 274] by evidence would be sufficient to avoid the bar of the statute.
Plaintiff and defendant reached Sedro Woolley on Wednesday, February 22, 1961. Plaintiff testified: ‘Our trip ended in Sedro Wooley (sic) around 4 o’clock in the afternoon, the best I can say.’ Again: ‘We stayed at my brother’s the whole time we were there.’ The collision occurred the following morning, February 23, 1961, some ten or fifteen minutes after leaving Sedro Woolley. Plaintiff testified on direct examination they (plaintiff, defendant and plaintiff’s brother) had started from Sedro Woolley to Mt. Vernon, and that he and defendant ‘were going down to sign up for unemployment at Mt. Vernon.’ Plaintiff testified on cross-examination: ‘The truth about the matter, we were not on the road to Mt. Vernon.’
The trip covered by the agreement between plaintiff and defendant ended on February 22, 1961, when they reached the home of plaintiff’s brother in Sedro Woolley.
Plaintiff does not allege facts tending to show his status on February 23, 1961, when injured, was that of joint adventurer or of paying passenger. Indeed, there is neither allegation nor evidence as to any agreement or arrangement as between plaintiff, defendant and plaintiff’s brother or any two of them after plaintiff and defendant reached the home of plaintiff’s brother in Sedro Woolley the afternoon of February 22, 1961, with reference to the operation by defendant of his said Chevrolet car. Apart from the deficiency in allegations, the mere fact, if it be a fact, that plaintiff and defendant on February 23, 1961, when the collision occurred, were on their way directly or indirectly to Mt. Vernon to sign up for ‘unemployment,’ is insufficient to support a finding that plaintiff was a joint adventurer or a paying passenger.
Plaintiff having failed to allege and prove facts sufficient to avoid the bar of the statute, the judgment of involuntary nonsuit is affirmed on that ground.