Cook v. Faria

318 P.2d 649, 73 Nev. 295, 1957 Nev. LEXIS 119
CourtNevada Supreme Court
DecidedNovember 26, 1957
DocketNo. 3985
StatusPublished
Cited by4 cases

This text of 318 P.2d 649 (Cook v. Faria) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Faria, 318 P.2d 649, 73 Nev. 295, 1957 Nev. LEXIS 119 (Neb. 1957).

Opinion

OPINION

By the Court,

Merrill, J.:

This is an appeal taken by the defendants below from [297]*297judgment for personal injuries sustained in an automobile upset. At the time of the accident appellant Elizabeth Cook was driving and respondent was an occupant of the car. The action was brought by respondent for injuries sustained by her. A jury verdict in her favor in the sum of $15,000 plus costs resulted. Upon this appeal from judgment appellants contend that respondent was a guest and not entitled to recover in the absence of proof of gross negligence and that gross negligence has not been established. NRS 41.180 provides that a guest shall have no right of recovery against the person responsible for operation of a motor vehicle in the absence of intoxication, willful misconduct or gross negligence. A guest is defined in the statute as “being a person who accepts a ride in any vehicle without giving compensation therefor.” The principal question involved upon this appeal is whether respondent can be said to have given compensation for her ride, thus rendering the provisions of the guest statute inapplicable.

The Cooks and the Farias were friends of long standing and originally were neighbors residing in San Lorenzo, California. In 1951 the Farias moved to a ranch in Owyhee County, Idaho, not far north of the Nevada border. In the fall of 1952 the Cooks joined the Farias on a four-or-five-day hunting trip in Idaho. The trip was successful and plans were made to repeat the experience the following year. In October 1953 the Cooks wrote the Farias in this regard. The Farias advised that due to the pressure of ranch work they would be unable to go through with their plans. The Cooks came anyway and for over a week remained at the Farias’ ranch as guests of the Farias. The two men on one or two occasions made short hunting trips and one deer was shot.

Cook was not an experienced hunter. The deer obtained was the first he had ever shot. He was 74 years of age and was not familiar with the country. The Farias, on the other hand, were both experienced hunters with knowledge of how to bleed and clean a deer, were thoroughly familiar with the country and well informed as to where deer might be found and by what roads good deer country could be reached.

[298]*298On October 30 one final hunting trip by both couples was taken to Grasmere, Idaho and then to the Gold Creek country in Nevada where the Farias had some mining- property they wished to show the Cooks. Having fired unsuccessfully at deer on two occasions the party crossed the Nevada line into Elko County. Then, since it was growing late, they decided to return without visiting the mining property. About five minutes after turning around, the accident occurred. The road was single-lane, dirt, with an embankment on the left, and a ten-foot decline on the right. The party had been discussing the gasoline supply and Mrs. Cook checked the gauge. At the point of upset the road curved to the right and suddenly narrowed from 11 feet to 7 feet. At this point Mrs* Cook, driving at about ten miles an hour, for the second time took her eyes from the road to glance, at the gasoline gauge. The right front wheel left the road and the car toppled over to land upside down.

We may concede the appellants’ point that gross negligence is difficult to find from these facts. If it can be said that Mrs. Faria gave compensation for her ride, however, simple negligence is sufficient to justify the verdict. Seasonable minds might well differ upon the question whether the acts of Mrs. Cook violated the standard of conduct of a reasonable man and a jury finding of simple negligence would not be disturbed under these circumstances. Accordingly we turn to the question of the existence of compensation.

Nyberg v. Kirby, 65 Nev. 42, 188 P.2d 1006, 193 P.2d 850, was a case in which the occupant of the car was present on the ride solely for the accommodation of the driver, although the accommodation was principally founded in friendship. This court held compensation to have been given, stating, p. 53, “In Nevada the word ‘compensation’ and not the word ‘payment’ is used in the statute and we have no decision in which it has been held that such compensation for the transportation must be a benefit in a ‘material or business sense’ conferred upon [299]*299or to result to the owner or operator of the automobile. In this state the compensation, as in California, may be any tangible benefit conferred by the invitee upon the owner or operator of the motor vehicle.” [Emphasis supplied.] A tangible benefit does not necessarily mean a money compensation. In Follansbee v. Benzenberg, 122 Cal.App.2d. 466, 265 P.2d 183, 186, 42 A.L.R.2d 832, it was held that “the term ‘passenger’ is not limited to a person paying for his transportation in cash or its equivalent, but includes in its scope a person who gives such recompense for a ride as may be regarded as compensation therefor — that is, a return which may make it ivorth the other’s tohile to furnish a ride.” [Emphasis supplied.] See also Malloy v. Fong, 37 Cal.2d 356, 232 P.2d 241; Duclos v. Tashjian, 32 Cal.App.2d 444, 90 P.2d 140; Crawford v. Foster, 110 Cal.App. 81, 293 P. 841.

In each of these California cases a business aspect of the trip is to be found, as was the case to a minor degree in Nyberg v. Kirby, supra. In such cases courts generally are inclined to be more easily satisfied with the compensation given than in cases where the purpose of the ride is essentially social. It is uniformly held that social companionship alone is not a tangible benefit, nor is simple hospitality, courtesy, nor presence impelled by social amenities. Kuser v. Barengo, 70 Nev. 66, 254 P.2d 447; Whitmore v. French, 37 Cal.2d 744, 235 P.2d 3; Brand v. Rorke, 225 Ark. 309, 311, 280 S.W.2d 906; Loeffler v. Crandall, 129 Colo. 384, 270 P.2d 769; Bond v. Sharp, 325 Mich. 460, 39 N.W.2d 37.

The rule stated in the Follansbee case, however, may be regarded as applicable generally rather than as a rule confined to cases of business trips. As was stated in Humphreys v. San Francisco Area Council, Cal.App. 129 P.2d 118, 121, subsequent opinion 22 Cal.2d 436, 139 P.2d 941, “It may be said of these cases generally that they show a marked tendency on the part of our courts in construing our guest law to take a broad and realistic and not a narrow or technical legalistic view of the situation [300]*300and relation of the parties in determining whether an injured occupant of an automobile was or was not a guest within the meaning of the statute at the time of receiving an injury.”

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Related

Greene v. Morse
375 S.W.2d 411 (Missouri Court of Appeals, 1964)
Cook v. Faria
328 P.2d 568 (Nevada Supreme Court, 1958)

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Bluebook (online)
318 P.2d 649, 73 Nev. 295, 1957 Nev. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-faria-nev-1957.