Brandis v. Goldanski

• Decision Date: 27 March 1953
• Citation: 117 Cal.App.2d 42,255 P.2d 36
• Parties: BRANDIS et al. v. GOLDANSKI et al. Civ. 15279.
• Court: California Court of Appeals Court of Appeals

Page 36

255 P.2d 36

117 Cal.App.2d 42

BRANDIS et al. v. GOLDANSKI et al.

Civ. 15279.

District Court of Appeal, First District, Division 1, California.

March 27, 1953.

Hearing Denied May 21, 1953.

Ralph Wertheimer, San Francisco, for appellants.

Charles V. Barfield and Franklin A. Plank, San Francisco, for respondents.

PETERS, Presiding Justice.

Where a participant in a church-sponsored picnic volunteers the use of his truck to carry supplies to the picnic, and one of the members of the church, with others, helps to load the truck, and that member agrees to ride with the owner of the truck to show him the route to the picnic grounds, and enroute the owner drives the truck negligently so that the rider is killed, was the rider a guest or a passenger within the meaning of the California guest law? That is the sole question presented on this appeal. In this action for the wrongful death of the driver brought by his widow and two adult children, the trial court decided that the rider was a guest and not a passenger, and, since wilful misconduct was neither pleaded nor proved, granted a nonsuit in favor of the defendants. On this appeal the plaintiffs contend that, under the evidence, it was a question of fact as to whether the deceased was a passenger or a guest, and that the nonsuit should not have been granted.

The facts disclosed by the record are as follows: Frank Brandis was killed in a collision on Bayshore Highway while riding in a truck owned by Israel Goldanski and Max Fourkas, partners in Drabkin's Fish Market, which truck was being operated by Goldanski when it collided with an automobile being driven by defendant John Wilder. Brandis was a member of a certain synagogue in San Francisco, and Goldanski, who had immigrated to this country in 1949, attended the same synagogue but was not a member of it. The two men were friends.

The synagogue decided to give a picnic. Goldanski and Brandis intended to attend. A few days before the date fixed for the picnic the rabbi called a meeting to discuss plans for the affair. Goldanski volunteered the use of the partnership truck, a cash register, and his services in driving and in loading and unloading the truck. No remuneration was asked for, promised, or expected. Brandis was present at this meeting. The rabbi stated that others would also help with the loading and unloading.

There is considerable conflict in the evidence as to what happened between Brandis and Goldanski prior to their arrival at the synagogue where the food and equipment for the picnic were to be collected. Mrs. Brandis testified that her husband and Goldanski had agreed in advance that they would go together, and that Goldanski should pick up Brandis at 5:30 a. m. One of the sons of decedent corroborated the existence of such prior agreement, except that he testified the agreed upon time was 7 a. m. Mrs. Brandis testified that on the morning of the picnic Goldanski did not arrive until 5:45 a. m., and that her husband had already left for the synagogue. Goldanski denied the existence of this prior arrangement to pick up Brandis, and denied that he endeavored to pick him up that morning.

The agreement among those who were to attend the picnic was that some were to donate food, and others were to donate services. Busses were to be available for all who desired that means of transportation. Some twenty-five or thirty persons were present at the synagogue to assist in loading the trucks. Goldanski's truck was loaded with food and equipment with his help, that of Brandis, and with the help of some seven or eight others. Goldanski, who cannot speak English, did not know the way to Bayshore Highway. He requested that one Levenson, who was present, or Brandis, should ride with him to point out the route. The truck would not comfortably accommodate three adults, so Brandis suggested that he would ride with Goldanski and that Levenson could travel on one of the busses. Brandis and Goldanski thereupon departed in the truck, with Goldanski driving. Undoubtedly it was impliedly understood that Brandis and others would help to unload the truck at the picnic grounds. It is admitted that Brandis did not agree to pay, nor did Goldanski expect to be paid, for the trip. Shortly after the truck arrived at the Bayshore Highway the truck and Wilder's automobile collided and Brandis was killed.

At the close of plaintiff's evidence a motion of nonsuit was first granted as to defendant Wilder on the ground that there was no evidence at all that he was negligent. Then the court granted a motion of nonsuit as to defendants Goldanski and Fourkas on the grounds that Brandis was a guest and not a passenger, and that the evidence, at most, showed but ordinary negligence on the part of Goldanski.

This appeal is from the judgment of nonsuit entered in favor of Goldanski and Fourkas. No contention is made that the evidence shows anything more than ordinary negligence, the sole contention being that it was a jury question as to whether Brandis was a guest or a passenger within the meaning of section 403 of the Vehicle Code. That section reads as follows: '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 such vehicle or against any other person legally liable for the conduct of such driver on account of personal injury to or the death of such guest during such ride, unless the plaintiff in any such action establishes that such injury or death proximately resulted from the intoxication or wilful misconduct of said driver.'

This section has been a prolific source of litigation. The policy it embodies, its constitutionality having been established Krause v. Rarity, 210 Cal. 644, 293 P. 62, 77 A.L.R. 1327; Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221, is a matter of legislative and not judicial concern. In the many cases decided under the section, certain principles have been established with reasonable clarity. To constitute 'compensation' within the section, actual money need not pass. If the rider confers a tangible benefit on the driver this will be sufficient to constitute 'compensation' and hence make him a passenger and not a guest. McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909; Lerma v. Flores, 16 Cal.App.2d 128, 60 P.2d 546. But the tangible benefit thus conferred must not be the mere exchange of social courtesies. In the leading case of McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909, the owner of a car and his wife agreed with the plaintiff and his wife to take their car on a pleasure trip, each family to pay one-half of the trip's expenses. It was held that, as a matter of law, the joint payment of expenses was not 'compensation,' but was a mere exchange of social amenities. For that reason, plaintiff and his wife were guests. At page 286 of 9 Cal.2d, at page 913 of 70 P.2d the court laid down the applicable rule as follows: 'Therefore, where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given. But it is not given where the main purpose of the trip is the joint pleasure of the participants. The payment of a portion of the expense, as for gasoline and oil consumed on the trip, is merely incidental and does not constitute the moving influence for the transportation. The provocation for the offer of transportation remains the joint social one of reciprocal hospitality or pleasure.'

On the other hand, where the main purpose of the trip is business, there is no doubt that evidence of a benefit of the type here involved--guidance as to route and helping to load and unload--is sufficient to sustain a finding of compensation within the meaning of section 403 of the Vehicle Code so as to render the rider a passenger. Thus in Yates v. J. H. Krumlinde & Co., 22 Cal.App.2d 387, 71 P.2d 298 it was held that where the rider expressly or impliedly agreed to help unload a truck and to assist in guiding it through some gates, such was sufficient benefit to sustain a finding that the rider had given 'compensation' and was therefore a passenger and not merely a guest. That case involved a business trip. In Christiana v. Rattaro, 81 Cal.App.2d 597, 184 P.2d 682, the plaintiff, a boy, was taken on a business trip by the driver to assist the driver in unloading melons. This was held sufficient to sustain a finding of payment of compensation within the meaning of section 403. Lerma v. Flores, 16 Cal.App.2d 128, 60 P.2d 546, was one where the rider went along to advise the driver as to route, and this was held sufficient benefit, the adequacy of which...