Opinion
4-8-1957
Elizabeth GILLESPIE, Plaintiff and Respondent, v. Mary B. RAWLINGS, Defendant and Appellant.* Civ. 21887.
Parker, Stanbury, Reese & McGee, Los Angeles, for appellant. Wayne Veatch, Henry R. Thomas, Los Angeles, Albert L. Garvey, Huntington Park, and Henry F. Walker, Los Angeles, for respondent.
Elizabeth GILLESPIE, Plaintiff and Respondent,
v.
Mary B. RAWLINGS, Defendant and Appellant.*
April 8, 1957.
Rehearing Denied April 23, 1957.
Hearing Granted June 4, 1957.
Parker, Stanbury, Reese & McGee, Los Angeles, for appellant.
Wayne Veatch, Henry R. Thomas, Los Angeles, Albert L. Garvey, Huntington Park, and Henry F. Walker, Los Angeles, for respondent.
FOURT, Justice.
From a judgment in favor of plaintiff in an action for damages for personal injuries sustained in an automobile accident, defendant has appealed.
Plaintiff alleges in the first cause of action of her complaint that she was a passenger for consideration and that defendant was negligent in the operation of the automobile; in the second cause of action plaintiff alleges that she was a guest and that defendant was guilty of wilful misconduct.
At the conclusion of the trial, defendant moved for a directed verdict upon the grounds that there was insufficient evidence as a matter of law to establish that plaintiff was a passenger for compensation or to prove wilful misconduct. The motion was denied. Following a verdict in favor of plaintiff, defendant filed a notice of motion for judgment notwithstanding the verdict and a motion for new trial, in the alternative. The motion for judgment notwithstanding the verdict was made upon the same grounds as was the prior motion for a directed verdict, and insufficiency of the evidence was specified as one of the grounds for the motion for new trial. Both of said motions were denied.
The only questions for determination are:
(1) Was the evidence insufficient as a matter of law to prove that the plaintiff was a passenger for compensation in the defendant's automobile?
(2) Was the evidence insufficient as a matter of law to prove that the defendant was guilty of wilful misconduct which was the proximate cause of the accident?
The jury having returned a general verdict against defendant, unless both of the foregoing questions can be answered in the affirmative, the judgment must be sustained since it is the rule that if a verdict in plaintiff's favor is general in form and there is one count of the complaint which is supported by the evidence and is free from error, such verdict will be upheld. Leoni v. Delany, 83 Cal.App.2d 303, 309, 188 P.2d 765, 189 P.2d 517; Wells v. Brown, 97 Cal.App.2d 361, 365, 217 P.2d 995; Moss v. Coca Cola Bottling Co., 103 Cal.App.2d 380, 384, 229 P.2d 802.
As stated in Follansbee v. Benzenberg, 122 Cal.App.2d 466, at page 471, 265 P.2d 183, at page 186, 42 A.L.R.2d 832, 'Whether a person riding with another was a passenger or a guest is to be determined on the basis of the answer to the factual question: Did the rider confer a benefit on the driver for the ride? Malloy v. Fong, 37 Cal.2d 356, 376-378, 232 P.2d 241. It is for the trier of fact to determine whether the rider conferred a benefit or whether the ride was merely of a social nature. Darling v. Dreamland B. & U. Co., 44 Cal.App.2d 253, 257, 112 P.2d 338; Sullivan v. Richardson, 119 Cal.App. 367, 371, 6 P.2d 567; Gosselin v. Hawkins, 95 Cal.App.2d 857, 861, 214 P.2d 110. Once the trier of fact has determined the fact of benefit, the province of the reviewing court is simply to examine the record to determine whether this factual finding is substantially supported.'
In reviewing the evidence it is also the rule, as stated in Crawford v. Southern Pacific Co., 3 Cal.2d 427, at page 429, 45 P.2d 183, at page 184, that 'all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked, principle of law, that when a verdict is attacked as being unsupported, the power of the appellant court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. [Citing cases.]'
The following facts are undisputed: The accident occurred on a Sunday, near noon, on U. S. Highway No. 6, near Ward Road in Los Angeles County. The weather was clear and sunny. Highway No. 6 goes from Los Angeles through Palmdale and Lancaster to Mojave and beyond. Defendant, accompanied by her husband and plaintiff, was driving in a northerly direction on the highway toward Palmdale on a straight stretch of road in the open country, about ten miles toward Los Angeles from Palmdale. Ahead of the car driven by defendant, going in the same direction and in the same lane of travel, was a car driven by Jean Novobilsky. As the two cars were approaching Ward Road, which leads into the highway from the northeast and ends there, defendant's automobile collided almost head on with a southbound automobile driven by Jean B. Brundage. The paved main portion of the highway at this point was 20 feet wide, divided by a broken white line down the center and with asphalt and dirt shoulders on each side. When the cars collided, the Brundage automobile was wholly within the southbound lane and defendant's automobile was partly in that lane, the point of impact being approximately four and a half feet over into the southbound lane. The accident caused serious injuries to plaintiff and defendant, and fatal injuries to defendant's husband.
Plaintiff and defendant were members of the same church and were active in church affairs. Defendant was a real estate broker. Plaintiff was a widow and owned a small home, which she was considering trading for income property. She first met defendant when another member of the church recommended her and defendant showed plaintiff some income property. Several months later defendant suggested that plaintiff go to work for her in her real estate office. At the time of the accident, plaintiff had been working for defendant in the office about four months at a salary of $30 a week for a five day week. Plaintiff did not have a real estate license and before going to work for defendant she had no experience in the real estate business. Defendant's husband had a real estate brokers license but he was very seldom in the office. Defendant ran the office and gave plaintiff instructions as to what to do.
With respect to her duties generally in the office, plaintiff testified as follows: 'I was to answer the telephone, and if there were no sales people in the office and some one inquired about property I was to find out what kind of property they wanted, and if I could, where they they wanted it, and get their names, and get their telephone number, and have one of the sales people call them when they came back into the office. And then, twice a week we received listings from the multiple board that all the realtors belonged to, and have property and their description, and their price, and everything. And it was my work to go through these listings and to make tickets for books for the sales people, and then, any property that had been sold, or any property that had been canceled, or if there were changes made on the listings for, maybe less money down, more money down, larger amount for the property, or lesser amount, or bonds added, any sort of change that was made, I was to go through the tickets that I had made for the sales people and put all this information on there for them. And then, these papers that we received were kept on file in the office so that they could be referred to at any time, and it was my job to keep those papers up so that if someone came in for a piece of property and the salesman wanted to take the file and find out they all went by number, and if they wanted to find out exactly the state of the property at that moment they would know it, because that was important to keep it up.
'Then, anyone who came in the office, sales people were not always in the office, I was there alone many of the times, to try to get as much information as I could from them in regard to the type of property they wanted, and where they wanted it, and what price they expected to pay, and whatever information I could get for the sales people, and their telephone number and their name, and promised to have somebody call them. Anyone that called in on the telephone, and when there wasn't anybody there, I did the same thing for them. And taking care of the ads in the paper, keeping them in a book, and as they were canceled to take them out of the book, and keeping a record of telephone calls that we had on each ad that was in the paper each day, and just general office work that came up to do. * * * * * *
'I couldn't quote prices, she told me, and I couldn't quote down payments. I couldn't quote monthly payments. I could quote if we had two bedroom houses in Hermosa, or if we had three bedroom houses in Manhattan, or if we had property for sale in Redondo. It was my job to find out what size house people wanted, how many bedrooms they wanted, and about what they wanted to pay, and the location that they wanted. But I couldn't go into any details or discussions about prices or sizes or things like that, descriptions, so to speak, of the legal description of the property, because I didn't have the license to do that.'
Plaintiff further testified that although she couldn't quote prices, and couldn't sell, defendant 'wanted me to learn all I could about the office so that when people came into the office I could have intelligent conversation with them regarding properties.'
From the listing blanks which were filled out by a realtor from information obtained from a customer, plaintiff could give certain information regarding the properties. As to that information, plaintiff's testimony was as follows: 'Q. Yes. You could answer whether the place was furnished or not? A. That is right. 'Q. The number of bedrooms? A. That is right. 'Q. Baths? A. Yes. 'Q. Whether it had showers? A. Yes. 'Q. Extra lavatory? A. Yes. 'Q. Sleeping porch, den, library, breakfast room, living room, dining room, kitchen, garage, heat whether it had gas or what kind of heat refrigeration and sprinkler system? A. Yes. 'Q. And the only other questions you could answer would be the size of the lot, and the age of the property? A. Yes. 'Q. And you got all that information off cards that had been prepared by a realtor? A. This is right.'
Plaintiff did not own a car. Defendant's husband had on many occasions brought plaintiff back and forth from her home to the office; defendant did so occasionally.
Ordinarily, plaintiff worked Monday through Friday of each week and did not work on Saturday or Sunday. On two occasions while she was employed by defendant she was asked by defendant to do something on her day off. One Saturday evening at defendant's request she attended a half hour advertisement program on television put on by real estate brokers; after the program at defendant's request she answered one of the three telephones for a time. Afterwards, plaintiff, defendant and her husband went to dinner together and defendant or her husband paid for the dinner. On the other occasion, after the Sunday morning church service, defendant asked plaintiff to go to the office with her so that she could straighten out the matter of her withholding tax. The office was always open on Sunday and while plaintiff was there the telephone rang several times and she answered it. Some people came in to see an apartment that was listed for rental and defendant gave plaintiff the key and asked her to show them the apartment, which she did. Plaintiff went home about four o'clock. On neither of these occasions did plaintiff receive any pay for her work and she did not expect any.
On two other occasions plaintiff and defendant were together on week-day evenings. On one occasion defendant was going to a church lecture and asked plaintiff if she would like to go; they went to the lecture in defendant's car. The other instance was the night before the accident when plaintiff, defendant, defendant's husband and Mr. and Mrs. Miller, who were business associates of defendant, went to an adult education high school play together. Afterwards they all had dinner together.
With respect to the purpose of the trip on which the accident happened and the circumstances that led to plaintiff's presence in the automobile, the evidence is as follows:
Defendant testified that for a number of years she and her husband had owned some lots in the desert near Miracle city; they liked to go once in a while to see the lots and see what was going on in the community; they enjoyed getting away from the general run and routine of business; they had not had a Sunday trip for over a year because she had been teaching Sunday School; when she and her husband decided to take the trip, she told plaintiff they were going and would like to have her go; it was a pleasure trip; she knew a Dr. Lindsey, who owned some property in the Palmdale area; he had discussed his property generally with her and asked her if she would also look at his property when she went to look at her lots; it was her intention to do so as the property was along the route they would take.
Plaintiff testified that there had been considerable talk in the office about real estate activity in Palmdale; the week before the accident a friend of hers who worked at Northrup brought her a newspaper from Northrup which had information about Palmdale and a map of the area; she took the paper to the office and everyone read it and studied it; Dr. Lindsey came in the office and was talking about his property; he marked the approximate location of his property on the map and asked defendant if she would look at it when she went to look at her lots. Regarding her conversation with defendant about going on the trip, plaintiff's testimony is as follows: 'Mrs. Rawlings talked about going to see their lots, and about going to Palmdale to see the real estate activity, and to find out what she could about it, because she could have contacted her realtor and sold the property there through them if somebody came into the office for that * * *. And she said, well I wouldn't know--this was at the last moment when she decided to go, and she said, 'We are going up there, and I want you to go with us.'' In response to a question as to whether she had been told she was to come along for the purpose of performing some duty on or in connection with the trip, plaintiff stated: 'No, but the thing is, we went to see the real estate activity in the Palmdale area and that was when--what we talked about going for, and to see the Rawling's lots.'
Plaintiff also testified that she did not regard defendant as a close personal friend; that she considered her an acquaintance.
Plaintiff asserts that the evidence, and the inferences which the jury could draw therefrom, clearly establishes that the relationship between plaintiff and defendant was that of employer-employee; that defendant was not plaintiff's personal or social friend; that the trip on which the accident occurred was a business trip; that plaintiff went on the trip because she was directed to do so by her employer and she could not well refuse and retain her the automobile because of the employee relationship; the automobile because of th employee relationship; that defendant had in mind anticipated profit which she might derive from dealings with the Lindsey Palmdale acres, and that plaintiff's work as a receptionist and her discussions with customers of property and activities she had seen all would be facilitated by her seeing the Palmdale properties and activities. Such evidence, plaintiff maintains, is sufficient to support an implied finding by the jury that defendant would derive a benefit by having plaintiff accompany her on the trip and that therefore plaintiff was a passenger and not a guest.
The rule is stated in Martinez v. Southern Pacific Co., 45 Cal.2d 244, at pages 250-251, 288 P.2d 868, at page 871, as follows:
'In considering whether or not a benefit constitutes compensation within the meaning of the statute, Veh.Code, § 403, certain general rules have been applied. Where the driver receives a tangible benefit, monetary or otherwise, which is a motivating influence for furnishing the transportation, compensation may be said to have been given, with the result that the rider is a passenger and the driver is liable for ordinary negligence. Thompson v. Lacey, supra, 42 Cal.2d 443, 447, 267 P.2d 1; Whitmore v. French, supra, 37 Cal.2d 744, 746, 235 P.2d 3. But the benefit to the driver must be something more than simply the pleasure of the rider's company, Whitechat v. Guyette, 19 Cal.2d 428, 433, 122 P.2d 47; and the mere extension of customary courtesies of the road, such as sharing travel expenses, does not destroy the host and guest relationship if nothing more is involved than the exchange of social amenities or reciprocal hospitality. McCann v. Hoffman, 9 Cal.2d 279, 286, 70 P.2d 909; Kroiss v. Butler, 129 Cal.App.2d 550, 555, 277 P.2d 873. On the other hand, the benefit need not be money or its equivalent. Malloy v. Fong, 37 Cal.2d 356, 377, 232 P.2d 241; Kruzie v. Sanders, 23 Cal.2d 237, 241, 143 P.2d 704; Brandis v. Goldanski, 117 Cal.App.2d 42, 45, 255 P.2d 36. However, where the inference of a tangible benefit amounting to a motivating influence rests wholly upon conjecture, it is not sufficient. Lyon v. City of Long Beach, 92 Cal.App.2d 472, 478, 207 P.2d 73. But an anticipated or prospective profit is a benefit and may be as effectual as an immediate or direct compensation. Follansbee v. Benzenberg, supra, 122 Cal.App.2d 466, 471, 265 P.2d 183, 42 A.L.R.2d 832. Where the trip is primarily for a business purpose rather than a social purpose, it is sufficient to show that the driver was to derive a substantial benefit from the transportation, Kruzie v. Sanders, supra, 23 Cal.2d 237, 242, 143 P.2d 704; and such substantial benefit may be found if the transportation was for the mutual economic benefit of all concerned. Thompson v. Lacey, supra, 42 Cal.2d 443, 447, 267 P.2d 1.'
Applying the foregoing rules to the evidence in the instant case, we are of the opinion that there is not sufficient evidence to sustain a finding that plaintiff was a passenger rather than guest. It may be conceded, as contended by respondent, that there is evidence that the relationship between plaintiff and defendant was that of employer-employee and that plaintiff accompanied defendant on the trip to see the real estate activity around Palmdale because defendant had said to her, 'We are going up there and I want you to go with us.' However, the evidence also discloses that the nature of plaintiff's employment was that of receptionist and clerk. She had no real estate license. She could not sell property or price it, nor could she describe it except as to certain limited matters which she read from a listing card prepared by a realtor. She was not asked to perform any duties on the trip. There is no evidence from which it may reasonably be inferred that plaintiff's presence in the automobile conferred upon defendant a special tangible benefit which was a motivating influence for furnishing the ride and which would constitute compensation; nor may it reasonably be inferred from the evidence that it was a business trip for the mutual benefit of plaintiff and defendant and that there was a direct benefit, in the nature of an anticipated and prospective profit, to both parties.
With respect to the accident itself, only two witnesses testified as to how it occurred, the defendant and John Novobilsky. The driver of the automobile that collided with defendant's car, Jean B. Brundage, and his wife, were both injured in the accident and had no recollection of seeing any vehicle before the accident happened, or any of the facts concerning it. The last time Mr. Brundage remembered anything before the accident his speed was around 50 miles an hour. Plaintiff was asleep in the front seat of defendant's car at the time of the accident and knew nothing about how it occurred.
Defendant testified that she did not recall how fast she was driving; that there was a car in front of her which slowed up very quickly; that she slammed on her brakes, her car swayed and nearly went over and then she was faced with another car. That was all she could recall.
John Novobilsky, the driver of the automobile ahead of defendant's car, denied that he stopped or decreased the speed of his car before the accident. He testified on direct examination that he was travelling at a speed of 50 to 55 miles an hour. He first noticed defendant's Mercury when he looked in the rear view mirror and saw it behind him at a distance of between 150 and 200 feet. The next time he looked the Mercury was 'starting to turn out to the left, crossing over as though it intended to pass.' At that time he was about 150 feet ahead of defendant's car, which seemed to be gaining. He did not see the oncoming car, but caught a glimpse of something as it went by his left window. He did not see the impact. On cross-examination, Mr. Novobilsky testified as follows: 'Q. Now, the first time you saw the car, I believe you told us it was around 150 to 200 feet back? 'A. That is correct. 'Q. When you say it began to veer over it was only about 50 feet closer to you than it had been the first time you saw it? 'A. I'm not positive. The distance I would say approximately. I can't judge it driving so good. 'Q. And at the time that the crash occurred your estimate as to the distance that the crash occurred behind you is, of course, just a very rough approximation, is it not? 'A. Yes, it is. 'Q. By the way, you've given us your speed as 50 to 55 miles an hour. Is that just an estimate, or did you happen to notice your speedometer? 'A. Well, I glance at my speedometer occasionally. 'Q. And you had glanced at it as you were driving along there? 'A. I glance at it no matter where I go. When I'm riding along a main road I always keep my speed down to where it belongs. 'Q. Did you glance at it after you had seen the Mercury in your rear view mirror? 'A. I don't recall. 'Q. You are unable to give any estimate as to the speed of the Mercury car, isn't that right? 'A. Definitely not.'
The highway patrol officer who appeared at the scene of the accident testified he found no skid marks attributable to defendant's Mercury.
Plaintiff maintains that the evidence supports a reasonable inference that defendant was going at an excessive rate of speed; that she drove over onto the left half of the highway in the face of oncoming traffic which could be clearly seen by one looking ahead, without necessity or emergency compelling her; that she failed to apply her brakes or take appropriate action to avoid the collision, knowing that serious injury to her guest was probable as well as possible. Plaintiff further asserts that 'in the language of the cases,' defendant 'flirted with danger' and 'without necessity or emergency compelling her, took a chance' and she was, therefore, guilty of wilful misconduct.
Defendant contends that plaintiff has failed to prove facts from which the required state of mind can reasonably be inferred so as to constitute wilful misconduct--that is, the intentional wrongdoing with knowledge that serious injury will be a probable consequence, or a wanton and reckless disregard of the possible results.
In Mercer-Fraser Co. v. Industrial Acc. Comm., 40 Cal.2d 102 at page 115, 251 P.2d 955, at page 961, the Supreme Court stated:
'Whether in any given case serious and wilful misconduct is shown, inherently presents questions of both fact and law. Insofar as the issues may relate to the credibility of witnesses, the persuasiveness or weight of the evidence and the resolving of conflicting inferences, the questions are of fact. But as to what minimum factual elements must be proven in order to constitute serious and wilful misconduct, and the sufficiency of the evidence to that end, the questions are of law.'
And 40 Cal.2d at page 117, 251 P.2d at page 962:
'And as appears from Porter v. Hofman (1938), 12 Cal.2d 445, 447-448, 85 P.2d 447 (a case involving the term 'wilful misconduct' as used in the so-called guest statute, Veh.Code, § 403), and cases there cited, this court has approved the following definitions: 'Wilful misconduct * * * necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom.'
"Wilfulness necessarily involves the performance of a deliberate or intentional act or omission regardless of the consequences.'
"'Wilful misconduct' means something different from and more than negligence, however gross. * * * The mere failure to perform a statutory duty is not, alone, wilful misconduct. It amounts only to simple negligence. To constitute 'wilful misconduct' there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. * * *' Substantially the same principles are stated in Helme v. Great Western Milling Co. (1919), 43 Cal.App. 416, 421, 185 P. 510; In James I. Barnes etc. Co. v. Industrial Acc. Comm. (1944), 65 Cal.App.2d 249, 254, 150 P.2d 527; In Parsons v. Fuller (1937), 8 Cal.2d 463, 468, 66 P.2d 430; and in Cope v. Davison (1947), 30 Cal.2d 193, 198, 180 P.2d 873, 171 A.L.R. 667 * * *.
'In Meek v. Fowler (1935), 3 Cal.2d 420, 425-426, 45 P.2d 197 (a case also involving the so-called guest statute, and quoting in part from Howard v. Howard (1933), 132 Cal.App. 124, 128, 22 P.2d 279 [guest statute]; see also Weber v. Pinyan (1937), 9 Cal.2d 226, 230-235, 70 P.2d 183. 112 A.L.R. 407 [guest statute]), the pertinent principles are discussed as follows: 'While the line between gross negligence and wilful misconduct may not always be easy to draw, a distinction appears * * * in that gross negligence is merely such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results, while wilful misconduct involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences. It seems clear that in excluding all forms of negligence as a basis for recovery in a guest case, the legislature must have intended that to permit a recovery in such a case the thing done by a defendant must amount to misconduct as distinguished from negligence and that this misconduct must be wilful. While the word 'wilful' implies an intent, the intention referred to relates to the misconduct and not merely to the fact that some act was intentionally done. In ordinary negligence and presumably more so in gross negligence, the element of intent to do the act is present and any negligence might be termed misconduct. But wilful misconduct as used in this statute means neither the sort of misconduct involved in any negligence nor the mere intent to do the act which constitutes negligence. Wilful misconduct implies at least the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result.
"Such intent and knowledge of probable injury may not be inferred from the facts in every case showing an act or omission constituting negligence for, if this were true, any set of facts sufficient to sustain a finding of negligence would likewise be sufficient to sustain a finding of wilful misconduct. As has been repeatedly declared, "wilful misconduct' means something more than negligence--more, even, than gross negligence.' [Citations.]" (See also, Emery v. Emery, 45 Cal.2d 421, 426-427, 289 P.2d 218.
Applying the foregoing principles to the facts in the present case, we are of the opinion that a finding that defendant was guilty of wilful misconduct cannot be sustained. There is no evidence from which it can be inferred that prior to the accident defendant was driving in a reckless or wanton manner, or that in veering into the left hand lane there was a conscious reckless disregard of the safety of the guest in her car, or that there was any express or implied knowledge on her part that serious injury was the probable result of her conduct.
The judgment is reversed.
WHITE, P. J., and DORAN, J., concur. --------------- * Opinion vacated 317 P.2d 601.