Opinion
Rehearing Denied Dec. 23, 1940
Hearing Granted Jan. 23, 1941
Appeal from Superior Court, Los Angeles County; Joseph W. Vickers, Judge.
Personal injury action by George Druzanich against Dorothy Criley and others. Judgment for defendants, and plaintiff appeals.
Affirmed.
COUNSEL
Edward M. Raskin and Belmore D. Goulden, both of Los Angeles, for appellant.
Joe Crider, Jr., of Los Angeles (John J. Ford, of Los Angeles, of Counsel), for respondents.
OPINION
YORK, Presiding Justice.
The instant action was brought against the operator and owners of an automobile by an occupant thereof to recover damages for personal injuries alleged to have been sustained by him when the operator lost control of the automobile causing it to go over an embankment.
This appeal is prosecuted from the judgment in favor of defendants which was rendered by the trial court sitting without a jury.
The record herein reveals that appellant, respondent Dorothy Criley, Messrs. Hinman and Lehman, all of whom were connected in some manner with the Cannery Workers’ Local Union No. 11 at Sunnyvale, California, desired to attend a union conference in Los Angeles. Accordingly, on September 2, 1937, a conversation took place between them and respondent Richard Criley (Dorothy Criley’s husband) at which time it was suggested by Mrs. Criley that her husband allow her to use an automobile registered in his name in order to make the trip to Los Angeles. Mr. Criley agreed to the plan and "asked them all to share in driving and to be responsible for the car"; to which "there was a general agreement on the part of all (of them)".
The party left Sunnyvale around the hour of 9 o’clock in the evening of September 2, 1937, respondent Dorothy Criley driving to King City. Appellant drove from King City to Santa Maria; and Mr. Hinman from that point to Santa Barbara, where they arrived between 5:30 and 6 o’clock on the morning of September 3d. At that time, because Mr. Lehman had a headache and was due to attend a conference that morning, it was decided that he should sleep and that respondent Dorothy Criley should drive the automobile from Santa Barbara to Los Angeles. When near Calabasas, Mrs. Criley "was driving about 50 or 55 miles an hour and came to a curve. I was sleepy because we had not slept all night and I blinked my eyes on the curve ***, a left-hand curve." She failed to negotiate the turn "because when I went around the curve there was a soft shoulder and I hit that and the car skidded and went out towards the center of the road and I lost control of it and went over the embankment". After turning over several times, the automobile came to rest about seventy feet "down in a sort of a gulch".
Appellant alleged in his third amended complaint that he "was a passenger and guest riding in said automobile *** operated by defendant Dorothy Criley *** in a wilful, wanton and reckless manner *** with the intent that harm should result therefrom; that as a proximate result thereof plaintiff was injured *** suffered a fracture of all six ribs on the left side of his body; a fracture of the left clavicle; a fracture of the left shoulder and socket; concussion of the brain; serious lacerations, bruises and contusions about the head, body and extremities; serious internal injuries *** and has been permanently injured, all to his damage in the sum of Fifty Thousand Dollars".
Except for appellant’s testimony and the depositions of respondents, no other evidence was presented at the trial of this cause. At the end of the trial counsel for appellant conceded that the evidence was insufficient to show wilful misconduct and narrowed the issues to a contention "that plaintiff was a passenger for compensation, so as not to be bound by section 403 of the Motor Vehicle Code", St.1935, p. 154.
The trial court found that "it is true that on or about the 3rd day of September, 1937, at about the hour of 7:00 a.m., plaintiff was riding in said automobile, but it is not true that he was riding as a ‘passenger’, and in this regard the Court finds that plaintiff was riding in said automobile as a guest without giving compensation for such ride, and that it is not true that defendants recklessly or carelessly or negligently drove or operated said automobile so as to cause the same to drive over the right embankment of said road. That it is true that plaintiff was injured while riding as a guest in said automobile, but that it is not true that said collision was due proximately to the negligence of defendants, or either of them, in operating said automobile.
"That it is true that the accident occurred and that plaintiff was injured, but inasmuch as the Court finds that plaintiff is not entitled to recover against defendants, the Court does not make any finding as to the nature or the extent of the injuries, or as to the amount of plaintiff’s damages."
Section 403 of the Vehicle Code provides: "No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of such vehicle or against any other person legally liable for the conduct of such driver on account of personal injury to or the death of such guest during such ride, unless the plaintiff in any such action establishes that such injury or death proximately resulted from the intoxication or wilful misconduct of said driver."
Upon this appeal, appellant urges that he was not a guest within the scope of said section for the reason that "the parties were engaged on a business venture, to-wit, the attending of a union conference in Los Angeles, for their mutual advantage and business as union officials and employees, and as duly elected delegates"; and that he "accepted the ride at the request of defendants to assist the latter in operating the automobile and to fulfill the object of the journey".
As was said in McCann v. Hoffman, 9 Cal.2d 279, 284, 70 P.2d 909, 912: "*** the courts have quite uniformly held one to be a passenger and not a guest who embarks upon a joint venture of a business nature rather than of a merely social aspect. A case which falls into this category is Jensen v. Hansen, 12 Cal.App.2d 678, 55 P.2d 1201, wherein three appraisers made joint use of the automobile for the purpose of inspecting and appraising property. The same conclusion would follow in the case of an attorney and client traveling on the latter’s business. Thompson v. Farrand, 217 Iowa 160, 251 N.W. 44. Likewise in this category fall such cases as Bree v. Lamb, 120 Conn. 1, 178 A. 919, wherein employees of Sears-Roebuck & Company were en route to attend a company meeting which it was their duty to attend and their superior requested them to ride in one automobile. ***
"The great weight of authority is to the effect that the sharing of the cost of gasoline and oil consumed on a trip, when that trip is taken for pleasure or social purposes, is nothing more than the exchange of social amenities and does not transform into a passenger one who without such exchange would be a guest, and consequently is not payment for the transportation or compensation within the meaning of the statute. It is obvious that if a different result obtained under any construction of the statute its purposes would be defeated and its effect annulled. The relationships which will give rise to the status of a passenger must confer a benefit of a tangible nature and are limited. Chaplowe v. Powsner, 119 Conn. 188, 175 A. 470, 472, 95 A.L.R. 1177. *** The mere fact that the parties in making the pleasure trip together have a like purpose in mind does not constitute it a joint venture wherein compensation is deemed to have been given. ‘A host and a guest may, and often do, have a common objective, in point of time or place; yet their relationship as such is not thereby necessarily changed. There may still be lacking a community of interest or an engagement to effect a common purpose as that term is understood in the law of joint adventure.’ Eubanks v. Kielsmeier, 171 Wash. 484, 18 P.2d 48, 49. The community of interest is lacking even though the plaintiff paid for some of the gasoline. ***
"Therefore, where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given. But it is not given where the main purpose of the trip is the joint pleasure of the participants. The payment of a portion of the expense, a for gasoline and oil consumed on the trip, is merely incidental and does not constitute the moving influence for the transportation. The provocation for the offer of transportation remains the joint social one of reciprocal hospitality or pleasure. The same conclusion was announced in Rogers v. Vreeland, 16 Cal.App.2d 364, 60 P.2d 585, under similar facts, and we perceive no necessity for adopting a different rule in construing the language employed by the Legislature." See, also, Stephen v. Spaulding, 32 Cal.App.2d 326, 89 P.2d 683.
A review of the cases cited indicates, as was aptly stated by the court in Duclos v. Tashjian, 32 Cal.App.2d 444, 450, 90 P.2d 140, 143, that the relationship of passenger arises when a journey is undertaken not as an act of hospitality nor as a favor, "but as a real and vital part of his business, with an eye to his own profit *** not as a means of obtaining free transportation, but as an integral part of a business transaction".
A conference of union delegates and employees differs little, if any, from a delegation of lawyers attending a bar conference, or a group of delegates attending a political convention, and it cannot be said with reason that either of the latter named groups would fall in the category of a business venture. In the circumstances presented by the record herein, it would appear that when the journey from Sunnyvale to Los Angeles was undertaken, the arrangement whereby respondents were to furnish the automobile and appellant agreed to assist in the driving, amounted to nothing more than an "exchange of social amenities" and created the relationship of host and guest, necessitating proof of wilful misconduct on the part of respondent Dorothy Criley before she could be required to respond in damages for the injuries sustained by appellant.
Since it was conceded by appellant that the evidence was insufficient to establish the wilful misconduct of said respondent, the judgment in her favor was proper. Moreover, considering the total lack of evidence with respect to the condition of the highway at the point where the accident occurred, the type of curve, the manner in which the shoulder had been constructed or how it appeared to one approaching the curve, the trial court correctly found that the accident was not proximately due to any negligence on the part of respondents. Accordingly, even though it were established that appellant was a passenger for compensation, he would not be entitled to recover damages.
It is also urged by appellant that the doctrine of res ipsa loquitur is applicable to the instant case and that the explanation offered by respondent Dorothy Criley as to how the accident happened was insufficient to rebut the inference of negligence raised by the application of said doctrine.
The theory upon which automobile accidents may properly involve the doctrine of res ipsa loquitur is that "the passenger may have no knowledge of what caused the accident, while the operator, who has the sole management of the machine, is in a better position to determine and explain the cause thereof". Ellis v. Jewett, 18 Cal.App.2d 629, 636, 64 P.2d 432, 436. Moreover, "When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care." O’Connor v. Mennie, 169 Cal. 217, 223, 146 P. 674.
However, the burden rested upon appellant to establish negligence on the part of respondents. "The mere fact that the accident occurred is not sufficient." Lake v. Churchill, 20 Cal.App.2d 411, 415, 67 P.2d 107, 109. If it be conceded that the facts herein present a proper case for the application of the doctrine of res ipsa loquitur, it was still incumbent upon appellant to assume the burden of proof and establish the wilful misconduct of respondent before he was entitled to recover. Respondent Dorothy Criley explained to the court that she was sleepy because neither she nor her companions had slept all night, and that she blinked her eyes on the curve. Appellant testified that about an hour before the accident he "thought the car was moving pretty fast, and I leaned over and I noticed that she was going about 50 miles an hour; so that I said to her to slow down", which she did, showing the willingness of respondent Dorothy Criley to rely upon the judgment of her companions.
Under the facts and circumstances which were shown by the evidence adduced at the trial, the court correctly found that appellant was a guest of respondents, and that the accident was not proximately caused by any negligence on their part.
The judgment is affirmed.
We concur: DORAN, J.; WHITE, J.