Opinion
Rehearing Denied Dec. 14, 1962.
Henry E. Kappler, Los Angeles, for appellant.
Gilbert, Thompson & Kelly and Jean Wunderlich, Los Angeles, for respondents.
FOX, Presiding Justice.
Plaintiff brought this action for the wrongful death of her son; she appeals from a judgment of nonsuit in favor of certain defendants, the respondents herein.
There are numerous other defendants who, during the course of the proceeding, had summary judgments granted in their favor but they are not involved in this appeal.
The respondents were the owners of a used car business in Pomona, and, in that capacity, employed Raymond Lewis Wood from December 30, 1958, to January 12, 1959, as a part time lot boy. Wood's duties consisted mainly of keeping the cars clean and doing minor adjustments thereon. Wood also tested certain cars on which he worked and, on occasion, purchased gasoline which was charged to respondents. There was evidence that on the date in question: (1) Wood purchased gas in the At or about 3:05 p. m. on January 12, 1959, Henry Carl Meyer, Jr. and Wood were in the Studebaker automobile as it proceeded north on Hamilton Avenue in Pomona, California. At the intersection of Hamilton Avenue and 5th Street, the Studebaker collided with an Auto-Car rock and gravel truck and trailer which was then proceeding in a westerly direction on 5th Street. Henry Meyer, Jr. died later that day as a result of the injuries sustained in the collision. Plaintiff, as decedent's mother having full custody of the 16-year old minor, brought this action pursuant to section 376, Code of Civil Procedure. Decedent's father (plaintiff's divorced husband) was joined as a defendant because he refused to be joined as a plaintiff.
Wood was named as a defendant but due to his apparent absence from the state was dismissed from the action without prejudice.
'The granting of a motion for nonsuit is warranted '* * * when, and only when, disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.' (Card v. Boms (1930), 210 Cal. 200, 202, 291 P. 190; see, also, * * * Blumberg v. M. & T. Incorporated (1949), 34 Cal.2d 226, 229, 209 P.2d 1, and cases there cited.) 'Unless it can be said as a matter of law, that * * * no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury.' (Estate of Lances (1932), 216 Cal. 397, 400, 14 P.2d 768.) In other words, while in most appeals it is the duty of the reviewing court to indulge every reasonable intendment in favor of sustaining the trial court, substantially the reverse is true when the appeal is from an order of nonsuit. In the latter case the appellate court must view the evidence as though judgment had gone in favor of the appellant, and order a reversal if such a judgment can be sustained.' (Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574, 575; see, also, Strnod v. Abadie, 181 Cal.App.2d 737, 740, 5 Cal.Rptr. 627.)
In view of the above rules we will assume arguendo that Wood was driving the Studebaker at the time of the collision. We must further assume, however, that the decedent was a 'guest' as opposed to a business invitee since there was not sufficient evidence to support a contrary conclusion.
This assumption is based on the following factors: (1) a presumption that a deceased person was exercising due care, if applied, would rule out that decedent was driving since the car was driven in a manner which would be considered at least negligent; (2) a presumption that decedent was obeying the law and since decedent did not have a license, he was not driving; and (3) the nature of decedent's injuries would indicate that decedent was on the right-hand side of the automobile where the severest damage took place, and not driving.
Appellant would have us infer from the fact that the decedent, a 16-year old boy, was interested in automobiles that he was in the market; from this and from the fact that the Studebaker was offered for sale, we are to infer that the decedent was a business invitee in the guise of a prospective purchaser. This is mere speculation. "It is axiomatic that 'an inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess-work." Eramdjian v. Interstate Bakery Corp., 153 Cal.App.2d 590, 602[5-6], 315 P.2d 19, 25.)' (Strnod v. Abadie, supra, 181 Cal.App.2d 737, 740, 5 Cal.Rptr. 627, 629.)
Respondents' liability, if any, must be either vicarious or primary. Any vicarious liability, in the factual context of the instant case, can flow from only two possible sources, namely: (1) responsibility for the Since there is sufficient evidence to support a finding that Wood was negligently driving the Studebaker, the following question initially presents itself: Are the respondents as employers-owners legally liable to the personal representative of the decedent (a guest) for the mere negligence of their employee-permissive user (Wood)? The answer must be in the negative. Vehicle Code, section 403 as then in effect (now section 17158) provided: '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 the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the guest during the ride, unless the plaintiff in any such action establishes that such injury or death proximately resulted from the intoxication or wilful misconduct of the driver.' (Emphasis added.) The Supreme Court, in construing this statute, stated: 'Section 403 bars actions against the 'driver' of a vehicle or against 'any other person legally liable for the conduct of such driver.' The phrase 'person legally liable' for the driver's conduct is clearly intended to cover cases in which the owner is vicariously liable for the driver's conduct because of the relationship of the parties, as principal-agent, or because of imputed negligence under section 402 [now section 17150]. [Citation.]' (Benton v. Sloss, 38 Cal.2d 399, 403, 240 P.2d 575, 577; see, also, Nault v. Smith, 194 Cal.App.2d 257, 268, 14 Cal.Rptr. 889.)
Several witnesses testified that the Studebaker was traveling at an excessive rate of speed shortly before and at the time of the accident and that the Studebaker ran through a yellow or red light.
Consequently, any liability of respondents must be predicated on the theory that Wood was acting in such a way as would constitute wilful misconduct and that such wilful misconduct is imputed to respondents. No such imputation is made merely because respondents owned the automobile involved in the tragedy. An owner in the capacity of owner is not liable to a guest for the wilful misconduct of a permissive user. (Benton v. Sloss, supra, 38 Cal.2d 399, 403, 240 P.2d 575; Weber v. Pinyan, 9 Cal.2d 226, 238, 70 P.2d 183, 112 A.L.R. 407; cf. Escobedo v. Travelers Ins. Co., 197 Cal.App.2d 118, 125-126, 17 Cal.Rptr. 219.)
There is no claim that Wood was intoxicated at the time of the collision.
Respondents' potential liability as owners rested on section 402(a), Vehicle Code (now section 17150, Vehicle Code) which provided: 'Every owner of a motor vehicle is liable and responsible for the death of or injury to a person or property resulting from negligence in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages.'
The analysis of the Supreme Court in the Weber case, supra, 9 Cal.2d 226, 230, 70 P.2d 183, 112 A.L.R. 407, is here apropos: 'In the light of this rule of strict construction the wording of the imputed negligence act [now Vehicle Code section 17150] fixing liability upon the owner of a motor vehicle for injuries 'resulting from negligence in the operation of such motor vehicle' would be easy of interpretation if it were not for the decisions which confuse the meaning of the word 'negligence.' Since the guest law limits the right of recovery of a guest to a showing of willful misconduct or intoxication, it is manifest that the plaintiffs herein have no cause of action against the respondents unless they can show that willful misconduct, and intoxication as used in one statute are the same as negligence as used in the other. Hence, in construing these statutes we must proceed under the rule of strict construction as to the imputed At page 238, at page 189 of 70 P.2d, the court concluded: 'Finally, the guest law in effect at the time of the accident provided that a guest 'shall have no right of recovery' for injuries sustained. The new statute provides that a guest shall have no 'right of action for civil damages.' Both contain the exception covering willful misconduct and intoxication. A right of recovery for injuries and an action for civil damages both relate to the same right of action--one in tort for negligence. The clear purpose of this portion of the statute was to declare that a guest should have no right of recovery for injuries arising from negligence in the operation of the car. In short, therefore, we find the Civil Code section imputing to the owner liability for negligence and the guest law adopted at the same time declaring that he shall not be held liable for negligence to a guest. We conclude, therefore, that the express and unambiguous language of section 1714 1/4 [now Vehicle Code section 17158] means that, in absence of some other relation such as that of master and servant or principal and agent, the owner of a vehicle who permits another to operate it is liable for injuries arising from the latter's 'negligence' as that term is defined herein, but that he is not liable for injuries arising from the driver's willful misconduct or intoxication. We also conclude that liability under section 141 3/4 of the Vehicle Act [now section 17158, Vehicle Code] was limited to acts of the owner or driver arising from the intoxication or willful misconduct by the owner or driver as the case may be, and that the owner who merely permits another to drive his car, and where no other relation exists, is not liable under either statute for injuries to a guest arising from the intoxication or willful misconduct of the driver.'
Thus the only remaining basis of vicarious liability rests upon the determination of the following inquiry: Are respondents as employers legally responsible to a guest of an employee for the wilful misconduct of that employee?
There is no evidence that would support an inference that Wood had any authority, express or implied, to permit or invite passengers. Further, there is no evidence that would permit a conclusion other than that the decedent was a guest of Wood and not of respondents.
57 C.J.S. Master and Servant § 575d(3), p. 337, states: 'It is generally held that a servant has no implied authority to invite or permit a third person to ride on a horse or vehicle in his charge and, if he does so, and such person sustains injuries through the negligence of the servant, the master will not be liable.' (See 39 C.J., section 1502, p. 1304, cited in Malcolm v. Tevis, 110 Cal.App. 76, 78, 293 P. 640; 5A Am.Jur., Automobiles and Highway Traffic, sections 650-651, pp. 647-650.)
The present position of the Restatement is: 'A master is not subject to liability for the conduct of a servant towards a person harmed as the result of accepting or soliciting from the servant an invitation, not binding upon the master, to enter or remain upon the master's premises or vehicle, although the conduct which immediately causes the harm is within the scope of the servant's employment.' (Restatement of Agency 2d, section 242.) Comment 'a' of that section provides: 'The rule stated in this Section is applied most frequently when a servant entrusted with the custody of a vehicle, without authority or apparent authority to do so, permits or invites persons to ride on it * * *.'
While there are numerous California cases which adopt this view where the employee is merely negligent (e. g. Giannini v. Campodonico, 176 Cal. 548, 550-551, 169 Sessions v. Southern Pacific Company,
Malcolm v. Tevis, Albers v. Shell Company of California,The position absolving the employer from liability to a guest of an employee occasioned by the wilful misconduct of the latter is preferable and has been accepted by a large number of other jurisdictions. (E. g., Jones v. Avco Mfg. Co., 218 F.2d 406 (8th Cir., 1955), certiorari denied 350 U.S. 826, 76 S.Ct. 55, 100 L.Ed. 738; Braselton v. Brazell, 49 Ga.App. 269, 175 S.E. 254 (1934); Monroe Motor Express v. Jackson, 74 Ga.App. 148, 38 S.E.2d 863 (1946); Dempsey v. Test, 98 Ind.App. 533, 184 N.E. 909 (1933); Ruiz v. Clancy, 182 La. 935, 162 So. 734 (1934); Dye v. Rule, 138 Kan. 808, 28 P.2d 758, citing § 242 (1934); Electric Bakeries v. Stacy's Adm'r, 252 Ky. 20, 66 S.W.2d 70 (1933); Pinson Transfer Co. v. Music, 239 S.W.2d 477 (Ky.App.1951); Wilson v. Dailey, 191 Md. 472, 62 A.2d 284, citing § 242 (1948); Gunn v. Coca-Cola Bottling Co., 154 Neb. 150, 47 N.W.2d 397 (1951); Struble v. Bell, 126 N.J.L. 168, 17 A.2d 800 (1941); Clark v. Harnischfeger Sales Corp., 238 A.D. 493, 264 N.Y.S. 873 (1933); Leesman v. Moser, 32 N.E.2d 448 (Ohio App.1935); Antonem v. Swanson, 74 S.D. 1, 48 N.W.2d 161, 28 A.L.R.2d 1 (1951); Home Stores v. Parker, 179 Tenn. 372, 166 S.W.2d 619 (1942); Meyer v. Culley, 69 Wyo. 285, 241 P.2d 87 (1952).
Under the above expressed views, it follows that in the factual context of the instant case, respondents were not liable, vicariously, as a matter of law and, therefore, as to this aspect of the case, the granting of the nonsuit was not error.
The only remaining possibility of liability would be of a primary nature--either on a theory of negligent entrustment of the automobile to or negligent hiring of Wood. This proposition was conceded by appellant in oral argument to be weak, and properly so because in the factual context of the case sub judice, there is not sufficient evidence to support a finding of negligence on either theory. The court therefore was not in error in granting a nonsuit.
Appellant suggests two final points: (1) the trial court erred in excluding certain evidence; and (2) the trial court abused its discretion in not permitting further cross-examination of one of the respondents. Neither argument is meritorious.
Judgment is affirmed.
ASHBURN and HERNDON, JJ., concur.