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.
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.
"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,
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. 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
"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 ...