Opinion
6-23-1953
THOMPSON v. LACEY. * Civ. 4515.
Luce, Forward, Kunzel & Scripps, San Diego, for appellant. Gray, Cary, Ames & Frye, Ward W. Waddell, Jr., and Alfred S. Wilkins, San Diego, for respondent.
THOMPSON
v.
LACEY. *
June 23, 1953.
Hearing Granted Aug. 20, 1953.
Luce, Forward, Kunzel & Scripps, San Diego, for appellant.
Gray, Cary, Ames & Frye, Ward W. Waddell, Jr., and Alfred S. Wilkins, San Diego, for respondent.
BARNARD, Presiding Justice.
This is an appeal from the judgment in an action for damages arising out of an automobile accident which happened about 7:30 a. m. on January 18, 1950, on U. S. Highway 101, two miles south of Irvine, in Orange County. This was a two-lane highway with a white line in the middle. The road was straight at that point but a heavy fog limited the visibility to between 100 and 150 feet, or 175 feet, according to different witnesses.
On that morning Mr. Thompson, Mr. Kerns and a Mr. Dreis left San Diego on their way to Los Angeles, in an automobile owned and driven by Kerns. Thompson and Kerns were in the front seat and Dreis was in the rear seat. Shortly before the accident Kerns, after several unsuccessful attempts, passed a car driven by one Jackson and pulled in behind a truck which Jackson had been following for about half an hour. Kerns then made several attempts to pass this truck and each time returned to his own lane to avoid colliding with a south-bound car. Shortly thereafter, Kerns made another such attempt and while trying to pass that truck he collided headon with another south-bound truck. Kerns and Thompson were both killed in the accident and Dreis, who received a head injury, had no recollection of the accident itself. He testified that prior to the accident there had been some discussion about the fog, which was encountered 'in varying intensity' all the way, but that he remembered no comment about the manner in which Kerns was driving.
Kerns was manager of the San Diego branch of the Arrowhead and Puritas Water Company, which included the San Diego and El Centro areas. Thompson was the sales supervisor of the San Diego area and Dreis was the sales supervisor of the El Centro area, Kerns being the immedate supervisor of both. All three had been asked to attend a meeting at the office of the company in Los Angeles for the purpose of discussing business policies for the ensuing year. On several prior trips of this nature these parties had ridden in Kerns' car and on one such occasion they had traveled in Thompson's car. A company official testified that all the employees were free to choose their own transportation, whether by train, plane or automobile, and that the company paid their actual travel expense, paying a certain rate per mile to any employee whose car was actually used. On this occasion Dreis came from El Centro, staying over night at Thompson's home, and the parties started from Los Angeles in Kerns' car. There was no evidence as to what was said by any one concerning the making of this trip, as to who suggested that they travel in Kerns' car, or as to why this arrangement was made.
At the conclusion of the plaintiff's case the court granted the defendant's motion for a nonsuit, and the plaintiff has appealed from the judgment which followed.
The main question on this appeal is whether the evidence is sufficient to show that Thompson was a passenger in this car, and not a guest, within the meaning of Section 403 of the Vehicle Code, which forbids recovery in such an action where the party in question accepts a ride 'without giving compensation for such ride'. The appellant contends that under the evidence the jury could reasonably have inferred that Thompson was a passenger and not a guest; that in construing this statute 'the courts have gradually expanded the definition of compensation so as to afford relief to all persons who are injured while riding in automobiles for other than purely social reasons'; that a case is taken out of the scope of this statute where the relationship of employer and employee exists or the passenger is performing services for the principal, or where the parties embark upon a joint venture of a business nature rather than of a merely social aspect; that there was a definite business relationship here between Kerns and Thompson, of which this trip was an incident; that both men were interested in the sale program which was to be discussed at the meeting; that the parties had no other goal but the meeting, and Kerns could not reap the full benefit of the meeting without having Thompson present; that the trip was purely a business venture undertaken in pursuit of the mutual business of these parties and their employer; that Kerns and the company would be benefited through the furnishing of this transportation because Kerns would be thus assured that Thompson would hear the discussion at the meeting and be in a better position to increase sales in the San Diego branch; and that the company would further benefit since it would save any mileage allowance to Thompson for the use of his own car.
It is well settled that the ordinary exchange of social amenities is not sufficient, and that this statute requires proof (1) that a special and tangible benefit accrued to the defendant, and (2) that this tangible benefit was the motivating influence for furnishing the transportation. McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909. In that case, the court said: 'It is obvious that if a different result obtained under any construction of the statute its purposes would be defeated and its effect annulled.' A showing that the trip was for the purpose of attending a meeting or conference in which both parties were interested, standing alone, is not sufficient; and this is true whether the conference was of a business or social nature. Whitechat v. Guyette, 19 Cal.2d 428, 122 P.2d 47; Druzanich v. Criley, 19 Cal.2d 439, 122 P.2d 53. In the Whitechat case, the court said: '* * * it must be shown that the appellant and the deceased were engaged in a business venture for their mutual advantage and that the ride was an integral part of that business venture.' [19 Cal.2d 428, 122 P.2d 50.] In that case the trip was for the purpose of attending a business meeting of a social organization. Four occupants of the car, being delegates, were required or expected to attend the meeting while the driver of the car was not such a delegate. It was held that while the trip was an integral part of a business venture for their mutual advantage, the relationship between the parties was merely one of a social nature. In the Druzanich case, the trip was for the purpose of attending a conference called by a labor union, and all parties concerned were delegates from separate braches of the same local union. It was there contended that compensation for the ride had been given, within the meaning of Section 403, because the parties were engaged in a business venture for their mutual advantage and traveling in contemplation of their mutual business. The court there said: 'This same contention was made by the respondents in the Whitechat case, supra, and we there held that the relationship between the driver and the deceased was not such as to bring the case within that group of cases headed by Walker v. Adamson, 9 Cal.2d 287, 70 P.2d 914, which stands for the above-mentioned proposition. The relationship in the Whitechat case differs from that presented here in that in the former case the driver, although a member of the Young Men's Institute, was not required to attend the meeting in Stockton, whereas in the instant case both parties were delegates to the conference. However, the instant case still does not come within the Walker v. Adamson classification. It is true that both parties desired or, as delegates, were required to attend the conference. It is also true that each would be benefited by individual attendance. However, the attendance of one was not necessary for the enjoyment of the benefits of attendance by the other. This being so, it becomes immaterial whether the conference was of a business or social nature. * * * In the instant case either the appellant or respondent Dorothy Criley could have enjoyed the benefits of the conference without the presence of the other. The fact that the parties were both interested in the general objective of the trip, viz., the attending of the conference, is not the controlling factor.' [19 Cal.2d 439, 122 P.2d 55.]
It was then held that because the evidence disclosed that prior to the trip the offer to transport the appellant was made conditional upon his sharing in the driving, without which agreement the car would not have been used, a special tangible benefit appeared which was the motivating influence for furnishing the transportation.
Where an employee was required to make the trip, it was held that the further fact that he was required by his superior officer to make the trip in the defendant's car would be sufficient to show that it was not a mere acceptance of the hospitality of another. Bree v. Lamb, 120 Conn. 1, 178 A. 919. That case and the Druzanich case support the conclusion that the fact that attendance at a business conference is required is not, in itself, sufficient; that where the injured party was free to choose his conveyance there must be some tangible benefit conferred by him through his acceptance of that particular ride; and that this tangible benefit must be the 'motivating influence' for furnishing the transportation.
In the instant case, there is no evidence that the offer of a ride was conditional in any respect, and the only evidence concerning the ride itself is that the parties rode in Kerns' car on their way to a business conference which both were expected to attend. If it could be inferred that Thompson's presence at this meeting was of benefit to Kerns, or to the company, there is no evidence to justify a further inference that this was the motivating influence for furnishing this ride. Thompson could have gone in his own car or otherwise, with his expenses paid, and there was no benefit arising from the ride itself. While they were on a business trip there was no mutual advantage in going together since neither would profit financially from so doing, and the ride was in no way an integral part of the business they had in mind. There was nothing in the ride itself whereby either enjoyed a business benefit from the presence of the other, and there was nothing in connection with the conference which made the presence of either on the ride necessary to the enjoyment of the benefit of the conference by the other. There is no evidence justifying an inference that Thompson would not have attended the conference had this ride not been made available to him. It is argued that Thompson saved the company a small sum by relieving it from the necessity of paying his travel expense. The manager of the company testified that the company was not concerned in such a matter, and any such benefit was furnished by Kerns and should not be considered tangible compensation given by Thompson or any one on his behalf. In any event, the evidence is not sufficient to justify an inference that this element constituted any motivating influence for furnishing this transportation.
Even if the presence of Thompson at this conference might have been of some benefit to Kerns or the company, there is no evidence justifying an inference that this was so connected with the ride as to constitute the motivating influence for any offer of the ride. The only reasonable inference from the evidence produced is that Kerns decided to drive his car and took Thompson along by express or implied invitation; that while both were interested in attending the conference, the idea of any tangible benefit accruing from the acceptance of the ride was in no way a 'motivating influence'; and that no such idea was in the mind of anybody concerned. There is no evidence of any regular alternative use of cars, and nothing to indicate any 'giving compensation for such ride' other than the fact that both parties were interested in attending the same meeting. Under such circumstances, as was said in the Druzanich case, 'it becomes immaterial whether the conference was of a business or social nature.'
This statute was very clearly intended to require that some real and tangible benefit conferred on another by the party accepting the ride was the underlying reason for the ride, in order to change his status from that of guest to passenger, and the clear meaning of the statute should not be abrogated or changed, under the guise of interpretation, in such a manner as to permit a recovery on unsubstantial evidence which, at best, amounts to mere speculation or conjecture.
The appellant further contends that there was sufficient evidence of willful misconduct to require a submission of this case to a jury. It is argued that this accident happened on a foggy morning on a two-lane highway with visibility limited to about 150 feet; that Kerns made several attempts to pass the Jackson car but was forced back by oncoming traffic; that after he passed the Jackson car he made several attempts to pass the truck but was forced back; that on one of these occasions one of the southbound automobiles was forced partly off the highway because Kerns was unable to get back in time; that he made a final attempt to pass the truck knowing that it was almost impossible to do so; and that, while there is no evidence of any verbal warning by any occupant of his car, the evidence indicates that Kerns was guilty of deliberate and intentional conduct with knowledge of the fact that danger was likely to result therefrom.
Willful misconduct is something more than ordinary negligence and more than gross negligence. Under the accepted definition, the conduct of a driver must amount to an intentional doing of something with the express or implied knowledge that an injury will probably result, or must disclose a wanton and reckless disregard of the consequences, in order to constitute willful misconduct. Turner v. Standard Oil Co. of California, 134 Cal.App. 622, 25 P.2d 988; Van Fleet v. Heyler, 51 Cal.App.2d 719, 125 P.2d 586. When the guest law was adopted in 1929, it included gross negligence as one of the exceptions. This element was later eliminated, leaving intoxication and willful misconduct as the only exceptions, and it seems apparent that this change was intended to further the original purpose of the law, by making it clear that some misconduct greater than that involved in even gross negligence, was required.
While this was a foggy morning, this is a common condition which affects all motorists at times. The evidence is that Kerns had been traveling at about 35 miles per hour, and there is no evidence indicating that his manner of driving disclosed a continued or persistent course of intentional disregard for the consequences. Mr. Dreis testified that he remembered no protests or criticism of Kerns' driving. Jackson testified that before Kerns passed his car 'He made one or two attempts to pass and oncoming traffic would kind of hinder him just a little'; that after Kerns passed his car Kerns made several attempts to pass the truck; that he could see by the stop lights on Kerns' car that Kerns had used his brakes to get back on his own side of the road behind the truck; and that on one of these occasions the other car 'had to go off the road just a little bit.' The evidence clearly shows that while Kerns made several prior attempts to pass the Jackson car and the truck, he did not then recklessly proceed but on each occasion he returned to his own lane when he found that he could not safely complete such passing. This discloses the usual situation where a driver pulls out far enough to see whether or not he can safely pass another vehicle, and returns to his own lane when he finds that this cannot be done. The fact that Kerns did this several times before he could safely pass the Jackson car, and also several times before his final attempt to pass the truck, strongly indicates an attempt to drive safely rather than an act intentionally done with knowledge that it would result in probable injury, or an act done with intentional or wanton disregard for the consequences. The only reasonable inference is that he made a mistake in judgment on the last occasion. If it be conceded that the evidence was sufficient to show negligence on Kerns' part, or even gross negligence, it was not sufficient to have supported a finding that he was guilty of willful misconduct, within the meaning of this statute. Meek v. Fowler, 3 Cal.2d 420, 45 P.2d 194; Weir v. Lukes, 13 Cal.App.2d 312, 56 P.2d 987; McLeod v. Dutton, 13 Cal.App.2d 545, 57 P.2d 189; Hall v. Mazzei, 14 Cal.App.2d 48, 57 P.2d 948.
The judgment is affirmed.
GRIFFIN and MUSSELL, JJ., concur. --------------- * Subsequent opinion 267 P.2d 1.