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HARTSELL v. HICKMAN

February 26, 1957

ROY R. HARTSELL, PLAINTIFF,
v.
HORTON G. HICKMAN, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, District Judge.

This case is before the Court upon plaintiff's motion for summary judgment in his favor and upon defendant's motion for summary judgment in his favor. Each party contends that there is no material issue of fact and that he is entitled to summary judgment in his favor as a matter of law.

The question presented to the Court is whether there is any genuine issue as to any material fact within the meaning of Rule 56, Fed.Rules Civ.Proc. 28 U.S.C.A. and whether either party is entitled to a judgment as a matter of law. In Marion County Co-Op Ass'n v. Carnation Co., D.C.W.D.Ark., 114 F. Supp. 58, this Court quoted extensively from a number of decisions of the Court of Appeals for this Circuit relative to various phases of the summary judgment rule. The Court will not repeat those quotations here. Suffice it to say that the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, and all doubts are resolved against him. It is with that rule in mind that the Court must consider the record in this case.

In this complaint the plaintiff, after stating the jurisdictional facts, alleges that:

"On or about November 15, 1954, plaintiff arranged with the defendant whereby defendant would accompany plaintiff on a week-long fishing trip on the streams and lakes of the Ozarks, plaintiff to pay all expense, including but not limited to the cost of gasoline, oil, boats, motors, cabins, food, tackle and $10.00 per day to defendant for guide service."

Plaintiff further alleges that he and the defendant fished on the Bull Shoals Lake on the day of November 16, 1954; that motor trouble developed and it was necessary to return to Harrison, Arkansas, where the motor could be repaired; that the parties were traveling in defendant's car with defendant driving, and the plaintiff fell asleep in the car; that the defendant negligently and carelessly drove his vehicle at a dangerous rate of speed and failed to keep his car under control, thereby causing the car to plunge off the highway into a canyon and injuring the plaintiff.

Plaintiff also alleges:

"In the alternative, plaintiff states that he was asleep in defendant's vehicle, at and prior to the defendant's leaving the highway, and that defendant's car was under the exclusive control and management of defendant, and that his leaving the highway and plunging into said canyon would not have happened if defendant had used the care to which the plaintiff, a farepaying passenger, was entitled."

In his answer the defendant denies any negligence on his part and alleges affirmatively that by reason of the Arkansas Guest Statute the plaintiff has no cause of action against him.

The parties have taken and filed the discovery deposition of the plaintiff and the discovery deposition of the defendant. There has also been filed a copy of a typewritten statement taken by the insurance adjuster representing defendant's insurance liability carrier and signed by the plaintiff.

Plaintiff's first contention is that the facts are undisputed; that the plaintiff was a fare-paying passenger; and that plaintiff is entitled to a summary judgment in his favor on the Guest Statute issue. Contrarily, defendant contends that the facts are undisputed and that he is entitled to a summary judgment on the Guest Statute issue.

In his discovery deposition the plaintiff, inter alia, testified as follows:

    "Q. Prior to going on over to the lake was there
  any discussion about the payment of expenses? A. Yes,
  he met me that night at the edge of town and then I
  went to the hotel and he came down and wanted to know
  about where to go and I told him I didn't know any
  place, that I would leave it up to him, that I just
  wanted to go someplace where we would have good
  conveniences, that I would leave that up to him, that
  I would pay all expenses.

"Q. What did he say to that? A. He said okay.

    "Q. Did he request you to pay the expenses, or was
  that voluntary? A. Well, I just told him I would.
    "Q. He never had asked you to pay the expenses? A.
  Well no, I just said I would. I told him I

  would leave it up to him about where we would stay.

"Q. Did you pay the expenses? A. Yes sir.

    "Q. When? A. After I got out of the hospital. He
  paid them and I refunded them to him.
    "Q. How much did you pay? A. I don't just exactly
  remember, but around twenty or twenty-one dollars. It
  was the expenses down there and some little things I
  had him get me while I was in the hospital, all told
  it was something in that neighborhood.
    "Q. Do you recall how you arrived at the figure,
  did he give it to you? A. Yes, he gave me the
  figures.
    "Q. What I mean, this was a friendly fishing trip
  you would make with any other friend or was there any
  special arrangements about it other than what you
  have already told me about agreeing to pay the
  expenses? A. Just what do you mean?
    "Q. Well, there wasn't — you weren't paying
  him to take you fishing were you? A. There wasn't
  nothing said about me paying him. I told him that I
  would pay all the expenses, and of course I expected
  to give him a ...

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