HERRMANN, Chief Justice:

In this automobile accident case, we are required to review the Superior Court's holding that the plaintiff was not a "guest without payment" within the meaning of the Delaware Motor Vehicle Guest Statute. 21 Del. C. § 6101. The Trial Judge made that finding and denied the defendant's motion for summary judgment. The Court found, as a matter of law, that the defendant was not guilty of wilful or wanton disregard of the plaintiff's rights.

I.

On the night of the accident, the plaintiff accompanied the defendant to a bar. They stayed for approximately four hours, during which time the defendant consumed three drinks. After being joined by an acquaintance, the trio left the bar in the defendant's automobile. The defendant attempted to pass a tractor-trailer, but in the process her car began to shake and swerve; she lost control of the vehicle and it left the highway and overturned. At the time of the accident, the defendant was in a proper passing lane and travelling between 55-60 mph; the speed limit was 55. The defendant maintains that she lost control as a result of wind resistance and suction of the tractor-trailer. Although the defendant claimed that she was trying to decelerate when the car began to shake, there was uncontradicted evidence that her foot remained on the accelerator.

II.

In holding that the defendant was not a "guest without payment", the Trial Judge stated:

"The benefit to a driver of receiving free transportation for a later evening is sufficiently `tangible' to constitute payment under the Guest Statute. The parties had shared transportation in the past in keeping with their mutual understanding. It can be assumed that the defendant expected this past conduct to continue and that her anticipation of receiving transportation from plaintiff was a factor in her decision to provide transportation to plaintiff on the night of the accident. Therefore, the plaintiff was not a `guest without payment' within the meaning of the Guest Statute and plaintiff is entitled to recover damages upon a showing of ordinary negligence and causation."

We must disagree.

Benefit to the driver is the crucial factor in determining whether a passenger in any given circumstance is a "guest without payment". Justice v. Gatchell, Del.Supr., 325 A.2d 97, 104 (1974); Mumford v. Robinson, Del.Supr., 231 A.2d 477 (1967). While such benefit need not be material in order to avoid the limitations of the Guest Statute, it must be something more than merely the pleasure of one's company or the exchange of social amenities. See e.g. Johnson v. Riecken, 185 Neb. 78, 173 N.W.2d 511 (1970); Sand v. Mahnan, 248 Cal.App.2d 679, 56 Cal.Rptr. 691 (1967).

The record in this case impels the conclusion that the benefit to the defendant was merely that of social companionship; we do not see in this case the "tangible" benefit found by the Superior Court. It must follow, in our opinion, that the Guest Statute applies. See e.g. Wagner v. Shanks, Del.Supr., 194 A.2d 701 (1963); Hazewski v. Jackson, Del.Super., 266 A.2d 885 (1970); see also Cook v. Pryor, 251 Md. 41, 246 A.2d 271 (1968) (Delaware Guest Statute applied).

The Trial Court relied upon Mumford v. Robinson, supra. Unlike the present case, however, Mumford involved more than mere social companionship. There, we found a "tangible benefit" in the driver's receipt of free sewing instructions, a benefit of the type usually paid for. Cf. Posner v. Minsky, 353 Mass. 656, 234 N.E.2d 287 (1968); Boyd v. McKeever, 384 Mich. 501, 185 N.W.2d 344 (1971). In contrast, the benefit to the defendant in the instant case visualized by the Trial Court is too "ethereal", in our judgment, to merit the status of yet another exception to the operation of the Guest Statute. We must be wary of the "legal meanderings", warned against in Justice v. Gatchell, which too often result in by-passing the dictates of the Guest Statute.

As we stated in Justice:

"Because application of the Automobile Guest Statute so often results in harsh, unfair, and unreasonable results, courts have shown a general tendency to carve out exceptions to the operation of the Statute in the interest of justice. Our own courts have demonstrated that tendency. (citations omitted) As a matter of policy, however, we do not favor further judicial creation of exceptions to the Statute. If, as many believe, the Delaware Automobile Guest Statute leads so often to unreasonable and unjust results and should be repealed forthwith, let its evils stand revealed to the General Assembly without further judicial effort to avoid a bad law by patchwork exceptions." ( 325 A.2d at 104)

Accordingly, we must disagree with the Court below as to the plaintiff's status under the Guest Statute.

III.

Fatal to the plaintiff's recovery is the fact that, even when viewed in the light most favorable to the plaintiff, the evidence in this record as to the defendant's conduct does not reflect the "conscious indifference" or "I-don't-care" attitude which is the pre-requisite of wanton behavior. See, e.g., McHugh v. Brown, Del.Supr., 11 Terry 154, 125 A.2d 583 (1956). At most, the evidence tends to establish: (1) that prior to the accident the defendant had consumed three drinks; and (2) that her foot remained on the accelerator despite the car's shaking and swerving. Absent, however, is any factual basis to support a conclusion that the defendant was intoxicated. Nevertheless, plaintiff contends that the evidence was sufficient, under our decision in Wilson v. Tweed, Del.Supr., 209 A.2d 899 (1965), to submit the issue of "wantonness" to the jury. We disagree. In Wilson, the defendant-driver chose to turn into the path of an oncoming car despite an explicit warning from his passenger and his own observation of the approaching vehicle. We denied summary judgment for the defendant because, under those facts, we found that a jury could reasonably conclude that such action manifested a "conscious indifference" to consequences. Importantly, no similar disregard can be discerned in the present case. Compare Hazewski v. Jackson, Del.Super., 266 A.2d 885 (1970).

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Accordingly, the denial of the defendant's motion for summary judgment is reversed.

BENSON v. STATE|375 A.2d 461 (Del.Supr. 1977)

PER CURIAM:

Defendant was convicted in the Superior Court of burglary in the second degree, 11 Del. C. § 825, and conspiracy in the second degree, 11 Del. C. § 512. He appeals, arguing that the evidence is not adequate to support either conviction and that the Court committed reversible error in admitting certain testimonial evidence.

The State's case against defendant was based on the testimony of an undercover police officer who participated as a "lookout" in the burglary with defendant. After describing what defendant did at the scene of the burglary, the police officer testified on direct examination as follows:

"Q Did you actually see him go inside [the premises]?

A Yes. I saw him go inside the same door he pried open. He went back inside and stayed about four minutes. He came running back out and told me to take off. I asked him what happened. He said `There is somebody inside, a woman.' I said, `Let's get out of here.' He said, `No. I am going back in. If she walks out on me, I am going to tie her up. I am going to throw a blanket on her, tie her up and rape her.'"

Defendant's counsel objected to the testimony but the Court, without explanation, simply overruled the objection and directed the Attorney General to proceed.

In our judgment, it was reversible error to admit this testimony since it was not relevant on either the burglary or the conspiracy charge, and it unfairly prejudiced defendant. "Fairness demands that criminal trials be free of unduly prejudicial matter and of matter which has a direct tendency of creating confusion in the minds of the jurors by introducing another issue . . . ." State v. Amaral, 109 R.I. 379, 285 A.2d 783, 787 (1972).

The State's case depended upon the credibility of the police officer which had to be evaluated against the testimony of defendant, who denied participation in the crime and contended that he was being framed by the police. The words of Chief Justice (then Judge) Herrmann in State v. Boyd, Del.Super., 8 Terry 370, 47 Del. 370, 91 A.2d 471, 472 (1952) are particularly pertinent here:

"I think that when the evidence of guilt is in close balance with evidence of innocence, the Court must give to the defendant the benefit of any reasonable doubt regarding the impact of prejudicial testimony upon the fairness of his trial. I cannot say with `fair assurance' that members of the jury were not substantially swayed by the detective's improper testimony when they weighed the defendant's word against that of his accuser. Therefore, it is impossible for me to conclude that the defendant's right to a fair trial was not substantially impugned by the incompetent and prejudicial testimony."

Since the officer's comment was neither relevant nor material to either of the charges at issue, the impact thereof, if not its purpose, was to unfairly prejudice defendant in the search for truth which the jurors were required to make. Under all the circumstances, admission of the testimony was reversible error. See State v. Wyman, Me.Supr., 270 A.2d 460 (1970).

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The judgment of the Superior Court is reversed and the case is remanded for further proceedings consistent herewith.