FOSTER v. SHROPSHIRE

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. § 6101.1 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.2

I.

The plaintiff and defendant were girl friends who occasionally went out "on the town" together. Each owned an automobile and, generally, they alternated in providing transportation, the passenger for the evening contributing neither gas money nor other transportation expense. Both sides agree that there is no genuine issue of material fact as to the "guest without payment" question. The parties are in disagreement, however, as to whether there is a genuine issue of fact regarding the "wilful and wanton disregard" question.

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:

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:

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

III.

With the Guest Statute found applicable, the plaintiff's recovery is conditioned upon establishing the defendant's "wilful or wanton disregard" of the rights of the plaintiff. On the record before us, we find as a matter of law that the defendant's actions did not constitute such conduct.

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 prerequisite 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.