Piercy v. Zeiss

BARNARD, P. J.

This is an action for damages for injuries sustained by the plaintiff in a collision between an automobile driven by the defendant Schaefer, in which she was riding, and another car driven by the defendant Zeiss. The defendant Schaefer, a life insurance agent, had attempted or was attempting to sell the plaintiff an annuity policy and the accident occurred while he was taking her to her home from her place of employment. The court found that the accident was caused by the negligence of the defendant Schaefer and that the plaintiff was riding in his car as a passenger and not as a guest. The defendant has appealed from the judgment on the sole ground that the evidence conclusively establishes that the plaintiff was his guest and not his passenger, at the time in question.

[597]

The appellant testified that he called upon the respondent at her place of employment; that she said she was interested in an annuity policy but had no time to discuss it then; that he found out where she lived and said "I live in that general direction and it isn’t out of my way any great amount, I will be glad to drive you home some night at your convenience and when I get you home I can tell you just exactly the details”; that she replied “That would be a good way to do”; that two or three days later he returned and told her what such a policy as she desired would cost at her age and asked her if she could afford to pay that amount; that she said she thought she could; that a few days later he made an appointment to take her home after working hours; that his purpose was to take her home and then sell her some insurance; that before she got into the car she told him she had no money to put into a policy at that time; that he replied “Well, that is all right, you are here, I might as well run you home anyhow”; that she got into the ear and said “I would like to know something about it”; that he laughed and said “Well, it looks like there is no profit in this, but I am going myself, and I will be very glad to run you home, and I will give you any general information that I can, but you are not in a position to buy”; that he would not have gone back to see her if he had known that she was not in a position to buy; that they did not discuss insurance on the trip except that she said she had discovered she was a year younger than she had told him; and that, so far as he was concerned, she had then ceased to be a prospect.