Opinion
No. 71-447
Decided January 23, 1973. Rehearing denied February 14, 1973. Certiorari granted April 16, 1973.
Personal injury automobile accident case. From submission of guest statute issue to jury with resulting verdict for plaintiff, defendants appealed.
Reversed
1. AUTOMOBILES — Facts Presented — Established — Matter of Law — Plaintiff a Guest — Error — Submit to Jury. Where, in personal injury action by automobile passenger, it is evident that plaintiff was invited on a side trip between Steamboat Springs and Craig for the sole purpose of defendant obtaining a key to a trailer house, and where such trip was conducted outside an arrangement between plaintiff and defendant concerning payment for gasoline for their skiing trip between Fort Collins and Steamboat Springs, and where there was undisputed evidence that on excursions around town plaintiff did not pay for gas and that defendant's father had filled the tank on the morning of the accident, plaintiff was, as a matter of law, a guest under the terms of the guest statute; and it was error for the trial court to have submitted such issue to the jury for its determination.
Appeal from the District Court of Larimer County, Honorable Dale E. Shannon, Judge.
Harden Napheys, Ralph B. Harden, for plaintiffs-appellees.
Fischer and Wilmarth, Elery Wilmarth, for defendants-appellants.
Division II.
Defendants appeal from a judgment entered on a jury verdict awarding plaintiff damages for injuries received in an automobile accident. Although defendants have asserted numerous errors, it is only necessary for us to consider the application of the guest statute, C.R.S. 1963, 13-9-1. We reverse.
As grounds for recovery, plaintiffs' complaint asserted both simple negligence and conduct consisting of a willful and wanton disregard for the rights, safety and well-being of plaintiff, Jana K. Hotchkiss. Defendants asserted the guest statute as an affirmative defense. Although defendants moved for a ruling as a matter a law that plaintiff, Jana K. Hotchkiss, was a guest under the guest statute, the court submitted instructions to the jury on simple negligence and on willful and wanton conduct. The jury was instructed that if it found that plaintiff was a guest it had to apply the willful and wanton standard. However, it was instructed that if it found plaintiff was not a guest, it could apply the simple negligence standard.
The pertinent evidence at trial was not in dispute and was consistent in establishing that plaintiff Jana K. Hotchkiss and defendant Deborah Ann Preble had taken skiing trips together from Fort Collins to Steamboat Springs, and that plaintiff customarily paid one-half of the gas. On the trip in issue in this case, plaintiff traveled in defendant's car from Fort Collins to Steamboat Springs where she was the guest of defendant and her parents at their trailer in Steamboat Springs. On the day of the accident, plaintiff was a passenger in defendant's car as they were returning from a trip from Steamboat Springs to Craig. Plaintiff was not required to pay expenses while staying at defendant's parents' trailer and was in every way treated as a guest on the trip. The side trip between Steamboat Springs and Craig was for the sole purpose of defendant obtaining a key to the trailer house and was conducted outside the arrangement concerning gasoline for the trip between Fort Collins and Steamboat Springs. There was undisputed evidence that on excursions around town plaintiff did not pay for gas, and the testimony established that defendant's father had filled the tank on the morning of the accident.
[1] To remove plaintiff from guest status, any payment made must be a special tangible benefit, accruing to defendant as a motivating influence for furnishing transportation to plaintiff. Klatka v. Barker, 124 Colo. 588, 239 P.2d 607. It is evident from the present facts that plaintiff was invited on the trip because her friend desired her companionship. This is true concerning the trip from Fort Collins to Steamboat Springs, and is even more true of the side trip from Steamboat Springs to Craig. There was no evidence to support a decision by the jury that plaintiff was not a guest. When there is no serious dispute as to the facts, the question of the party's status as a guest is one of law. Dobbs v. Sugioka, 117 Colo. 218, 185 P.2d 784; Hollenbach v. Fairbanks, 132 Colo. 216, 287 P.2d 53. We hold that, as a matter of law, plaintiff was a guest under the terms of the guest statute, and the trial court should have so ruled.
It was thus error for the trial court to have submitted for the jury's determination the question of whether plaintiff was a guest. The jury should have been instructed as a matter of law that plaintiff was a guest and no instruction permitting a verdict on simple negligence should have been given. The verdict of the jury may well have been rendered upon the standard of simple negligence rather than that degree of negligence required to be proved by a guest under C.R.S. 1963, 13-9-1. Hence, the judgment rendered on that verdict cannot be upheld on review. We reverse the judgment and remand the cause for a new trial.
CHIEF JUDGE SILVERSTEIN and JUDGE PIERCE concur.