Opinion
Rehearing Denied May 22, 1961.
Hearing Granted June 21, 1961.
Robert Allan Hansen, San Francisco, for appellant.
Bledsoe, Smith, Cathcart, Johnson & Phelps, San Francisco, Robert A. Seligson, San Francisco, of counsel, for respondent.
DUNIWAY, Justice.
Plaintiff appeals from a judgment entered upon a verdict for the defendant in an action for personal injuries. Three contentions are presented: (1) That the court erroneously refused to give appellant's proposed instructions on the doctrine of res ipsa loquitur; (2) that the court erroneously gave a 'mere happening of the accident' instruction; (3) that the court's instructions under the guest statute (Veh.Code, § 17158, former § 403) were erroneous. We find no error.
The complaint alleged that appellant was respondent's passenger; the answer, that she was a guest. Appellant relied entirely upon ordinary negligence; no contention is made that if she were a guest she would still be entitled to recover. 1. The court properly refused appellant's proposed res ipsa loquitur instruction.
This is a case in which, if a proper res ipsa loquitur instruction had been requested, it should have been given. Appellant's evidence showed that respondent, at about 9:00 o'clock at night, was driving westerly on highway 50 in the Sierra Nevada, a few miles east of Placerville. The accident occurred on a curve to the left when the car left the highway on the right and struck a tree. Speed was 50 to 55 miles per hour. These facts would require a proper res ipsa instruction. 'When a driver goes off the highway, or collides with a stationary object, the natural inference is that he has been negligent, and res ipsa loquitur applies.' Prosser, 'Res Ipsa Loquitur in California,' 67 Cal.L.R. 183, 207-208. A similar rule is stated in 5A Am.Jur., Automobiles and Highway Traffic, section 929, page 820. See also Druzanich v. Criley, 19 Cal.2d 439, 445, 122 P.2d 53; Mansfield v. Pickwick Stages, N.D., 68 Cal.App. 507, 509, 229 P. 890; Leitert v. Pickwick Stages, N.D., 68 Cal.App. 504, 506, 229 P. 889; Seney v. Pickwick Stages, 82 Cal.App. 226, 228-229, 255 P. 279; Fedler v. Hygelund, 106 Cal.App.2d 480, 485-486, 235 P.2d 247; Fiske v. Wilkie, 67 Cal.App.2d 440, 447, 154 P.2d 725.
The requested instruction, B.A.J.I. 206-B, reads in part as follows: 'From the happening of the accident involved in this case as established by the evidence, an inference arises that the proximate cause of the occurrence was some negligent conduct on the part of the defendant.' It was accompanied by the so-called 'educational' instruction, B.A.J.I. 206-C. As applied to this case, the proposed instruction is clearly erroneous, and the court properly rejected it.
Appellant had no recollection of what happened; the evidence was elicited from respondent under Code of Civil Procedure, § 2055. She was the only eyewitness. Her testimony was that two cars were approaching her on the curve, one of which was in her lane trying to pass the other, that the lights of the car in her lane were 'high,' that she thought it would run into her, that she pulled to the right to avoid a collision, that her reaction was 'practically instantaneous,' and that she ran into a tree. This version of the accident was partially corroborated by the testimony of a state highway patrolman who investigated the accident, and fully corroborated by appellant herself in a statement given to an insurance adjuster.
Such evidence certainly does not necessarily give rise to an inference that respondent was negligent, yet the instruction tells the jury that it does. That is why the instruction has been held to be improper. Kite v. Coastal Oil Company, 162 Cal.App.2d 336, 328 P.2d 45; Rayner v. Ramirez, 159 Cal.App.2d 372, 324 P.2d 83; Black v. Partridge, 115 Cal.App.2d 639, 252 P.2d 760 and cf. Barrera v. De La Torre, 48 Cal.2d 166, 308 P.2d 724; Tallerico v. Labor Temple Ass'n, 181 Cal.App.2d 15, 20-21, 4 Cal.Rptr. 880. The court did not err in rejecting it and therefore also properly rejected the 'educational' instruction. Kite v. Coastal Oil Company, supra. It was the duty of appellant, not the court, to prepare a proper instruction. Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 158, 323 P.2d 391.
2. The court did not err in giving the 'more happening of the accident' instruction.
The form of the instruction is not criticized. Basically, appellant's contention is that such an instruction, when res ipsa loquitur applies as a matter of law or when accompanied by proper instructions upon res ipsa loquitur, is prejudicially confusing. Appellant's reliance is upon Jensen v. Minard, 44 Cal.2d 325, 282 P.2d 7; Alarid v. Amar v. Union Oil Co.,
Williams v. Cole, Barrera v. De La Torre, Shaw v. Pacific Greyhound Lines, Phillipa v. Noble,3. The instructions under the guest statute were nor erroneous.
The evidence points strongly to the conclusion that appellant was a guest, not a passenger. The parties are sisters (cf. Shapiro v. Bookspan, 155 Cal.App.2d 353, 358), 318 P.2d 123, and the jury was not required to accept their stories, even where they coincided, in view of the ambiguous position of respondent in the case. In her statement to the insurance adjuster, appellant stated 'I paid my sister nothing for the ride.' Respondent told him that the trip was for pleasure, to do a little gambling at Lake Tahoe, that she told appellant she was going, and that appellant asked to come along. On the stand, both ladies testified, in substance, that appellant suggested the trip, that her purpose was to go to Reno to see about her property and to order some trees and plants, and that she offered to pay for the trip. She did pay for gasoline. However, the parties never got to Reno; they stopped at Stateline, drank, gambled, ate, and started home. Appellant bought the drinks and the lunch. Certainly, on these facts, the jury could readily conclude that the two sisters were taking a pleasure trip, and that the payments made by appellant were not the or a motivating factor in respondent's going and taking her own car.
In its charge to the jury, the court gave the following instruction: 'Although in a layman's language a person can be both a guest and a passenger, in law the two words differ in meaning. A guest is one who is invited, either expressly or impliedly, to enjoy the hospitality of the driver of the vehicle, who accepts such hospitality, and who takes a ride in such vehicle either for her own pleasure or an her own business without conferring upon the driver a tangible benefit which was to the driver the principal inducement for furnishing the transportation or the motivating influence thereof. Where, however, the driver receives from the rider some special tangible benefit which is the principal inducement or motivating infulence for the rider's transportation, the rider is a passenger, not a guest. The mere sharing of expenses of a motor trip, such as gasoline and oil, do not in and of itself cause the rider who pays part of such expense to be a passenger rather then a guest. If such payment was the principal inducement or motivating influence to the driver for the ride, then the rider is a passenger and not a guest. However, if the rider shares expenses out of mere pleasure, kindness, relationship or friendship alone, the rider is a guest and not a passenger. Only if the payment to the driver is the principal inducement or motivating influence to the driver for the ride is the rider a passenger.' This instruction is criticized on the ground that there was no 'sharing of expenses.' The contention is a quibble; respondent furnished the use of a new car for a trip of 200 miles or so, and was paid nothing for its use; she furnished a major part of the 'expense.'
The jury retired at 3:15 and returned to court at 5:00 asking for further instructions 'on the guest law.' The court reviewed the history of the statute, and then said 'A partial answer to one of your questions * * * is that not every payment of an expense * * * amounts to taking a person out of the guest law and making him a passenger. * * * It depends on circumstances. * * * Now, whether or not the payment of a given item of expense or more than one time [sic--item?], a couple The jury again returned at 9:50 and asked for a definition of 'motivation.' They first asked if certain things had been 'proved,' which the court properly declined to tell them. After some further colloquy, the court instructed: 'The outstanding authority in California uses one term only: That is the agreement to pay or to compensate or to confer a special benefit upon the owner of the car, you see. If that agreement is the primary or principal inducement, that which leads to the trip, were the rider, you see, then it is compensation, and the person is a guest. The person, rather, is a passenger and not a guest. If that offer or the actual payment of all or part of certain parts of the expenses, if that is the primary or principal inducement, then the person becomes a passenger.
'Now let me give you an example. Two persons may collaborate or speak together about a trip, a sojourn some distance away, concerning which neither one had any definite plans in the beginning, but it grows. They confer about it. Interest is generated and engendered about it. A person has qualms, misgivings, doubts, uncertainties, whether they are going to go or not. There are many reasons which one advances or puts forth as to why the trip should be made. Sometimes one of those reasons becomes the motivating reason, that which determines or resolved in the mind of the owner of the car, 'I will go,' you see.'
A juror then enquired how, 'unless you are God' can one find out what motivates a person. To this the court replied: 'You have the conversations between the two sisters, what they said to each other. The beginning or the very source or incipient beginning of their conversation about the trip. To prove that point, for instance, the week previous they didn't dream of a trip, perhaps, but sometime, in somebody's mind, there was inspired the idea of a trip. It may have been in the mind of one or the minds of both. You have the testimony, I can't add to it. We try these cases only on the testimony which is available, which is produced, and then you have the conversations of the sisters. It's been clear here what was said, and the final question to determine, whether or not Mrs. Faulk was a passenger or guest, depends upon whether or not as a result of her conversation with her sister and her offer to pay or her agreement to pay certain items of the cost on the trip; whether those become the motivating--the moving force, the moving cause of the decision on the part of Mrs. Soberanes to make the trip, and but for which she wouldn't have made it.' The jury again retired, and at 11:15 came in with the verdict.
Appellant complains because the court did not give the following requested instruction: 'A basic issue to be determined by you in this case is whether the plaintiff, Anna Faulk, was a guest of the defendant, Willetta Soberanes, at the time of the accident in question.
'This issue is termed a basic one because the foundation of liability as to a guest differs significantly from that as to a passenger.
'Although in a layman's language a person can be both a guest and a passenger, in law the two words differ in meaning.
'A guest is one who is invited, either expressly or impliedly, to enjoy the hospitality of the driver of a vehicle; who accepts such hospitality; and who takes a ride in such vehicle either for his own pleasure or on his own business, without 'Where, however, the driver receives a tangible benefit, monetary or otherwise, which is a motivating influence for furnishing the rider's transportation, the rider is a passenger and the driver is liable for ordinary negligence (direct quote from Whitmore v. French, 37 Cal.2d 744, at page 746, 235 P.2d 3, Footnote 4).
'When we speak of a 'motivating influence,' we mean something which is actually a moving cause of the ride and not some minor consideration that may have possibly entered the mind of the owner of the automobile (direct quote from Gillespie v. Rawlings, 49 Cal.2d 359, 364, 317 P.2d 601).
'However, the mere sharing of expense of a motor trip, such as for gasoline and oil, does not, in and of itself, cause the rider who pays part of such expense to be a passenger, rather than a guest. If such a contribution is the motivating influence for furnishing the transportation, if the arrangement has a character similar to that of a business agreement, then the payment is compensation for the ride, and one who thus rides and pays or agrees to pay is a passenger; but if the purpose of the trip is merely the joint pleasure of the participants, if that objective is what led to the trip as a social occasion, then the sharing of expenses is merely incidental, and one who thus rides with the driver, although sharing in the expense, is a guest.
'If the plaintiff was a passenger while riding with defendant at the time of the accident, the defendant owed to her passenger the duty to exercise ordinary care, and if any negligent conduct on defendant's part was a proximate cause of injury to plaintiff, defendant is liable.
'If, however, plaintiff was a guest of the defendant, your verdict must be in favor of the defendant and against the plaintiff. The reason for this is that under Vehicle Code 403 a driver is legally responsible to a guest only for injury to the guest which proximately results from the intoxication or willful misconduct of the driver and in the case at bar there is no contention that the defendant was either intoxicated or guilty of any such misconduct.'
We confess that we can see no substantial difference between this instruction and the ones given by the court; certainly the court's instructions were not more favorable to respondent. Counsel's criticisms over selected words and phrases are niggling in the extreme. Some are equally applicable to his own proposed instruction. The court clearly explained to the jury the basic question it had to decide: were the payments, if any, that appellant agreed to make, the motivating influence in inducing respondent to take appellant on the trip? Gillespie v. Rawlings, 49 Cal.2d 359, 317 P.2d 601; Martinez v. Southern Pacific Co., 45 Cal.2d 244, 250-251, 288 P.2d 868; Hayes v. Harry, 183 Cal.App.2d 412, 6 Cal.Rptr. 671; Ray v. Hanisch, 147 Cal.App.2d 742, 306 P.2d 30; Fiske v. Wilkie, supra, 67 Cal.App.2d 440, 154 P.2d 725. The jury found against appellant, and the evidence clearly supports the verdict.
Affirmed.
BRAY, P.J., and TOBRINER, J., concur.