Opinion
No. 77-739
Decided April 6, 1978. Rehearing denied April 27, 1978. Certiorari denied June 19, 1978.
In action for personal injuries by passenger who was the daughter of the car's owner against the driver of the car, her friend, trial court, relying on the guest statute, dismissed the complaint, and plaintiff appealed.
Reversed
1. AUTOMOBILES — Guest Statute — Inapplicable — Passenger — Daughter of Owner — Invite — Driver. Where daughter of automobile's owner had permission to drive the car and had the use of it "most of the time," and where she invited her friend to accompany her and allowed the friend to drive, the host-guest relationship for purposes of the guest statute did not depend on the driver-passenger status of the car's occupants, but rather on the extending and accepting of the gratuitous transportation; thus, trial court's dismissal of complaint against the driver by the passenger premised on the driver's simple negligence was error.
Appeal from the District Court of the County of Jefferson, Honorable Ronald J. Hardesty, Judge.
Bradley, Campbell Carney, Victor F. Boog, for plaintiffs-appellants.
DeMoulin, Anderson, Campbell Laugeson, Byron G. Rogers, Jr., for defendants-appellees.
Plaintiffs appeal from a judgment dismissing their complaint pursuant to defendant's motion for summary judgment. We reverse.
The complaint states that on May 22, 1974, "the Defendant Cheryl Holzfaster negligently drove a motor vehicle in which the Plaintiff Nancy Ann Scheimo was a passenger," as a result of which the plaintiff was injured.
The facts are undisputed. The car was owned by Nancy's father, plaintiff Ronald Scheimo. Nancy had permission to drive the car and had possession and use of it "most of the time." Nancy had invited Cheryl to ride with her to get some lunch, and Nancy had driven the car. Later Cheryl has asked and received permission to drive, and Nancy became the passenger. Cheryl drove the car off the road and struck a pole, causing damage to the car and injuries to Nancy.
Only simple negligency was alleged. Defendants asserted that the "guest statute," § 42-9-101, C.R.S. 1973 (repealed April 9, 1975) barred recovery. The sole issue is whether Nancy, by allowing her friend to drive, became a "guest" under the statute. We hold she did not.
The guest statute, being in derogation of the common law, is strictly construed. Dobbs v. Sugioka, 117 Colo. 218, 185 P.2d 784 (1947). Whether a person is a guest within the meaning of the guest statute is a question of fact if the evidence is in dispute or is susceptible of different constructions. Hotchkiss v. Preble, 184 Colo. 157, 519 P.2d 360 (1974). However when, as here, the facts are not in dispute, it is only the legal effect of the facts which is at issue, and thus the issue is determinable as a matter of law. Dobbs v. Sugioka, supra. Hence we are not bound by the trial court's determination. See American National Bank v. Christensen, 28 Colo. App. 501, 476 P.2d 281 (1970).
The issue presented has not been decided in Colorado. However it has been before the courts of other states many times, and a substantial majority of those states has held that permitting a guest to drive the car does not change the host-guest status of the parties. We are persuaded by the reasoning of the majority.
Baldwin v. Hill, 315 F.2d 738 (6th Cir. 1963), is directly in point. There, as here, a young lady, using her father's car with his permission, gave a friend permission to drive the car while she became a passenger. The driver drove the car into a pole causing injuries to the young lady. The trial court held that the Michigan guest statute applied, and the appellate court reversed. The Michigan statute is identical to the Colorado statute.
The court first pointed out that the situation was similar to that of an owner of a car who permits a guest to drive, and noted that the owner has been held not to be a guest, citing Collie v. Aust, 173 Cal. App.2d Supp. 793, 342 P.2d 998 (1959). Accord, Gledhill v. Connecticut Co., 121 Conn. 102, 183 A. 379 (1936), and Lorch v. Eglin, 369 Pa. 314, 85 A.2d 841 (1952). The underlying rationale, the court stated, "is that the host-guest relationship is dependent in large measure upon the furnishing of hospitality by the host to the guest. Since the owner-passenger is the one extending the hospitality — furnishing the mode of transportation — to the driver, the owner-passenger is the host and the driver is the guest." See Dobbs v. Sugioka, supra.
[1] Accordingly, we hold that, under the circumstances presented, the host-guest relationship does not depend on the driver-passenger status of the car's occupants but rather on the extending-and-accepting of the gratuitous transportation. Therefore, § 42-9-101, C.R.S. 1973, is not applicable here.
The judgment is reversed, and the cause remanded with directions to reinstate the complaint.
JUDGE VAN CISE and JUDGE KELLy concur.