Ahlgren v. Ahlgren

• Decision Date: 23 July 1957
• Citation: 313 P.2d 88,152 Cal.App.2d 723
• Court: California Court of Appeals Court of Appeals
• Parties: Waldemar T. AHLGREN, Plaintiff and Appellant, v. George AHLGREN, Defendant and Respondent. Civ. 5454.

Page 88

313 P.2d 88

152 Cal.App.2d 723

Waldemar T. AHLGREN, Plaintiff and Appellant, v. George AHLGREN, Defendant and Respondent.

Civ. 5454.

District Court of Appeal, Fourth District, California.

July 23, 1957.

Rehearing Denied Aug. 7, 1957.

Hearing Denied Sept. 18, 1957.

Augustine, Bryans & Ragen, San Diego, for appellant.

McInnis, Hamilton & Fitzgerald, San Diego, for respondent.

GRIFFIN, Justice.

Plaintiff and appellant, owner and occupant of a Chrysler car, brought this action for damages against his brother, defendant and respondent George Ahlgren, its driver.

The complaint, after alleging these facts, averred that George negligently operated plaintiff's car so as to strike a car driven by one Guillermo Agundez, resulting in serious and permanent injuries to plaintiff. Defendant answered, admitted certain allegations, denied others, and alleged that defendant was operating plaintiff's car at the time, as plaintiff's agent, servant and employee, under his immediate direction and control, and at his special instance and request; that he was driving plaintiff's car as a social favor and gratuity by reason of plaintiff having partaken of intoxicating liquor. At the trial it was stipulated that:

'George Ahlgren as driver and operator of the automobile was in the exclusive control and possession of it and was the operator and driver and that he was negligent in the operation and driving of the automobile and that his negligence was a proximate cause of the plaintiff's injuries, who was at the time and place riding in the automobile.'

If further appears that Agundez obtained a judgment against both brothers in another independent action as a result of the collision. The remaining facts are in little dispute. Plaintiff and his family were living with defendant and his family. On the evening of March 27, 1953, there was a party given at the company office. Plaintiff and defendant attended and during the evening George suggested to Waldemar that they go home and Waldemar said: 'Would you drive?' or 'Can you drive?' and George said: 'Yes, I will.' Waldemar had some drinks but George did not. They started home, with George driving. Waldemar fell asleep in the front seat and soon thereafter the accident happened. The court found, in accordance with these facts, that defendant was negligent and his negligence was a proximate cause of plaintiff's injuries; that the trip was one of free social accommodation and that plaintiff gave no consideration to the defendant for the ride; that defendant received nothing of value for operating the car; that other allegations of plaintiff's complaint were untrue; and concluded that, at the time indicated, plaintiff was 'riding as a guest' in the automobile operated by defendant. (Italics ours.) Sitting without a jury, the court rendered judgment for defendant.

It is true, as commented in the trial court's opinion filed herewith, that under Benton v. Sloss, 38 Cal.2d 399, 240 [152 Cal.App.2d 725] P.2d 575, it was intended that section 403 of the Vehicle Code limits actions by a guest only as to the 'driver' of a vehicle, and that section, under certain conditions, does not apply to the owner where he is not driving. See also Winn v. Ferguson, 132 Cal.App.2d 539, 545, 282 P.2d 515. The decision in the instant case was rendered prior to the decision in Ray v. Hanisch, 147 Cal.App.2d 742, 306 P.2d 30. The Ray case appears to be controlling in reference to the question here presented. There the defendant was driving an automobile owned by plaintiff, in which plaintiff was...