Ahlgren v. Ahlgren

• Decision Date: 07 October 1960
• Citation: 8 Cal.Rptr. 218,185 Cal.App.2d 216
• Court: California Court of Appeals Court of Appeals
• Parties: Waldemar T. AHLGREN, Respondent, v. George AHLGREN, Appellant. Civ. 6445.

Page 218

8 Cal.Rptr. 218

185 Cal.App.2d 216

Waldemar T. AHLGREN, Respondent, v. George AHLGREN, Appellant.

Civ. 6445.

District Court of Appeal, Fourth District, California.

Oct. 7, 1960.

Hearing Denied Nov. 30, 1960.

McInnis, Focht & Fitzgerald and John W. McInnis, San Diego, for appellant.

Augustine & Bryans and C. H. Augustine, San Diego, for respondent.

GRIFFIN, Presiding Justice.

Plaintiff and respondent, owner and occupant of a Chrysler car, brought this action for damages against his brother, defendant and appellant George Ahlgren, its driver. The complaint, after alleging these facts, averred that George, on March 28, 1953, 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's having partaken of intoxicating liquor. At the first 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 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.'

It further appeared that Agundez obtained a judgment against both brothers in another independent action, as a result of the collision. The remaining facts, about which there is little or no dispute, are specifically set forth in the prior decision of this court in Ahlgren v. Ahlgren, 152 Cal.App.2d 723, 313 P.2d 88 (hearing denied by Supreme Court). We there held that Vehicle Code, § 403, relating to a guest's right to recover for injuries received while riding in an automobile, is limited to guests and that under ordinary circumstances an owner riding in his own car, while it is being driven by another person, is not a guest. See also Ray v. Hanisch, 147 Cal.App.2d 742, 306 P.2d 30. The reversal of the judgment was based upon the finding and conclusion of the trial court that section 403, Vehicle Code, the guest statute (now section 17158, Vehicle Code), which was not pleaded, relieved defendant of liability because it believed plaintiff, while riding in his own car, was a guest within the meaning of that section. On a retrial, defendant obtained an order relieving himself of any previous stipulations previously entered into between counsel. He amended his answer, omitted the claimed principal-agent relationship, and alleged that plaintiff was a guest within the meaning of section 403, Vehicle Code.

The principal questions remaining to be determined after the reversal were whether defendant was negligent, whether plaintiff was a passenger in his own car as contended by him or was a guest in his own car, and to determine his status and fix the question of damages, if any. Defendant again, on this appeal, claims immunity under section 403, Vehicle Code, and cites Phelps v. Benson, 252 Minn. 457, 90 N.W.2d 533; 4 U.C.L.A. Law Review 652; Benton v. Sloss, 38 Cal.2d 399, 240 P.2d 575; and Frankenstein v. House, 41 Cal.App.2d 813, 107 P.2d 624; Ray v. Hanisch, supra, 147 Cal.App.2d 742, 306 P.2d 30; Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218. Defendant now states that at the trial he abandoned any claimed defense set forth in the answer that the negligence of defendant was imputed to plaintiff on the theory of principal and agent.

After some discussion, both parties stipulated that the trial judge to whom the case was assigned to hear without a jury could consider the transcript of the evidence produced at the former trial both as to extent of damages and as to whether plaintiff was a guest or a passenger and to fix his status. This court in the former appeal, in effect, held that plaintiff was not a guest within the meaning of section 403, Vehicle Code, under the evidence produced, even though that defense was not at that time pleaded. If there was a bailment, lease, or if he occupied some other status, that was a question of fact to be determined by the trial court from evidence produced in a subsequent hearing. Further testimony was taken as to plaintiff's present physical condition. The parties submitted the case on the present and previous record and transcript, and the court, in a letter addressed to counsel, as gleaned from the briefs, stated:

'With respect to the status of the case as a result of the appellate court decision, it is my opinion, on the authority of Weightman v. Hadley, 138 Cal.App.2d 831 that the case was returned for trial de novo but that the appellate decision sets forth the law of the case in view of the facts the evidence is in no material respect different from that of the original trial. On that basis decision must be for the plaintiff and I find him to have been damaged in the sum of $31,500.'

The court then found generally in favor of plaintiff; that plaintiff was not a guest but was riding as a passenger in the automobile driven by defendant and at the request of the plaintiff; that the service of defendant in so doing was without consideration; that defendant, in driving plaintiff's automobile, was then the agent of plaintiff for such purpose; that defendant negligently and recklessly drove said automobile so as to run into and collide with another automobile and as a direct and proximate cause of such negligence plaintiff received severe injuries, such as a broken pelvis and other bodily injuries resulting in permanent disfigurement throughout his body, and that his left leg now is and will continue to be at least one inch shorter than his right leg. Damages in the sum of $31,500 were awarded.

Defendant now claims on appeal that there was no allegation or proof that defendant was the agent of plaintiff and that the court was not authorized to base liability on the theory of principal and agent; that it is only where an owner is riding in an automobile being operated by another person that an inference of agency arises as to a third person (citing Randolph v. Hunt, 41 Cal.App. 739, 183 P. 358, and Souza v. Corti, 22 Cal.2d 454, 139 P.2d 645, 147 A.L.R. 861); that the evidence here did not indicate the plaintiff exercised, or could exercise, any control over the actions or conduct of defendant in the operation of the car, and the relationship amounted to no more than a social nicety, or brotherly love, and not principal and agent for the purpose of dealings with third parties. But see Glanville v. Cannick, 182 Cal.App.2d 514, 6 Cal.Rptr. 175. We concede that there is respectable authority holding that under certain circumstances an owner riding in his own car and driven by another may be held to be a guest. Phelps v. Benson, supra, 90 N.W.2d 533 and cases cited therein; Ray v. Hanisch, supra, 147 Cal.App.2d 742, 306 P.2d 30; Prosser on Torts, 2d Ed. p. 499.

In 26 California Law Review, at page 252, discussing the Guest Statute of California, it is said:

'* * * since such statutes are in derogation of the common law in denying a remedy to guests where one existed before, the California courts have construed the Guest Statute strictly, defining 'guests' narrowly, and 'compensation' broadly. The latter construction is due to the obvious fairness of requiring a duty of ordinary care to the occupant of the car if he has conferred a benefit upon the driver. And the weight of authority now supports the view that almost any benefit or profit accruing to the driver or his principal from the transportation is 'compensation,' removing the rider from the guest category.'

See also McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909. Many incidents are cited in California Law Review, supra, wherein the status of the occupant of a car has been held to be outside the operation of the guest statutes. It was wherein stated that these instances are (1) where compensation or benefit in some form was present; (2) mutual benefit contemplated of a business nature; (3) employer-employee relationship existing; and (4) 'when the relationship of the parties is that of principal and agent, e.g., the owner of the car asks the guest to drive, the former thereby becoming a passenger.' (Citing cases.) It is further noted in California Law Review at page 254, note 25:

'* * * if the guest is a bailee of the car to whom the owner has relinquished all control, the owner himself becomes a guest, rather than a passenger.' (Citing cases.)

Dean Prosser, cited in Roberts v. Craig, 124 Cal.App.2d 202, 210, 268 P.2d 500, 43 A.L.R.2d 1146, speaking on vicarious liability in joint enterprise cases, said:

'It is well settled that the vicarious liability which is designed for the protection of third persons against the risks of the enterprise does not extend to any action between the parties themselves, and that a negligent servant will be liable to his master, or one member of a partnership to another. Most of the courts which have considered the question have recognized this, and have held that the driver's negligence, which is itself the cause of action, will not bar the passenger's recovery.'

To the same effect is Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185, 189. There, plaintiff Harper, owner of the car, alleged that she was a guest in the car at the invitation of her husband, defendant driver, and she brought suit against the driver for injuries resulting from the heedless or reckless conduct of her husband. Plaintiff testified she had loaned the car to her husband to be used by him on a business trip, with the intent at the time that he should have exclusive control and management thereof while being so used. This testimony was in negation of her...