Clapp v. Hester

• Decision Date: 13 April 1959
• Citation: 169 Cal.App.2d 558,337 P.2d 525
• Court: California Court of Appeals Court of Appeals
• Parties: Olive CLAPP, Barbara Barnard, Administratrix of the Estate of Eugene F. Fredericks, Deceased, Plaintiffs and Respondents, v. Michael HESTER, Administrator of the Estate of Thomas P. Hester, Deceased, Defendant and Appellant. Civ. 18256.

Page 525

337 P.2d 525

169 Cal.App.2d 558

Olive CLAPP, Barbara Barnard, Administratrix of the Estate of Eugene F. Fredericks, Deceased, Plaintiffs and Respondents, v. Michael HESTER, Administrator of the Estate of Thomas P. Hester, Deceased, Defendant and Appellant.

Civ. 18256.

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

April 13, 1959.

Rehearing Denied May 6, 1959.

Hearing Denied June 3, 1959.

Ricksen, Freeman, Hogan & Vendt, Carl R. Vendt, Haley, McInerney & Logan, Richard G. Logan, Oakland, for appellant.

J. Adrian Palmquist, Oakland, Francis T. Cornish, Berkeley, for respondents.

FRED B. WOOD, Justice.

Eugene Fredericks met death in an automobile accident. The car belonged to and was driven by Thomas Hester, who also died as a result of the accident.

Fredericks' mother sued Hester's administrator for the death of her son. Fredericks' administratrix sought recovery of funeral and burial expenses. In support of his appeal from an adverse judgment the defendant assigns but a single error: An instruction to the jury that Fredericks was a passenger and that Hester owed him a duty of ordinary care.

When the guest law (Vehicle Code, § 403) is involved a rider claiming the status of passenger has the burden of proving that compensation was given for the ride. Martinez v. Southern Pacific Co., 45 Cal.2d 244, 250, 288 P.2d 868.

'Where * * * the driver receives a tangible benefit, monetary or otherwise, which is a motivating influence for furnishing the transporation, the rider is a passenger and the driver is liable for ordinary negligence. [Citations.]' Whitmore v. French, 37 Cal.2d 744, 746, 235 P.2d 3, 5. What is such a benefit is well indicated by the following cases: When the rider goes along to assist the driver in loading, talleying weights and using tire chains (Fedler v. Hygelund, 106 Cal.App.2d 480, 235 P.2d 247); when he goes for the purpose of assisting the driver in search of a market for the latter's oranges (Haney v. Takakura 2 Cal.App.2d 1, 37 P.2d 170, 38 P.2d 160); when invited by the driver to aid the latter with her Christmas shopping (Kruzie v. Sanders, 23 Cal.2d 237, 143 P.2d 704); when a newspaper representative takes a prospective carrier out on a route to acquaint him with his prospective duties (Sumner v. Edmunds, 130 Cal.App. 770, 21 P.2d 159); when a real estate broker takes her receptionist out to visit certain properties to enable the latter to familiarize herself with real estate activities, the better to perform the duties of her employment (Cillespie v. Rawlings, 49 Cal.2d 359, 317 P.2d 601); when two real estate brokers go to examine certain property which they expect will enable them to close a deal in which one of them represents the buyer and the other the seller (Parrett v. Carothers, 11 Cal.App.2d 222, 53 P.2d 1023); when three appraisers, each engaged by the same loan company to appraise certain property (none of whom can receive his appraisal fee until all three appraisals have been made) travel together in the car of one of them to make an appraisal (Jensen v. Hansen, 12 Cal.App.2d 678, 55 P.2d 1201); when three fellow employees take a business trip in the car of one of them, their employer paying the driver mileage for the use of his car; even without such reimbursement, the riders would be deemed passengers (Thompson v. Lacey, 42 Cal.2d 443, 267 P.2d 1); when a rider is taken on a business trip to help unload melons (Christiana v. Rattaro, 81 Cal.App.2d 597, 184 P.2d 682); when a rider accompanies the driver to guide the latter along the highway (Lerma v. Flores, 16 Cal.App.2d 128, 60 P.2d 546); when the rider's presence is desired by the driver to share in the driving (Druzanich v. Criley, 19 Cal.2d 439, 122 P.2d 53).

The question whether such a benefit accrues to the driver is usually a question of fact; '[h]owever, if the admitted facts can give rise to but one reasonable conclusion, the question as to whether or not 'compensation' was given for the ride becomes one of law. [Citations.]' Winn v. Ferguson, 132 Cal.App.2d 539, 543, 282 P.2d 515, 517.

Here, the evidence on this subject, given solely by the defendant Michael Hester and his principal witness, Thomas Wintch, convinces us that the trial judge correctly determined that the only reasonable inference that could be drawn was that compensation was given and that Fredericks was a passenger.

Thomas Hester worked for McGuire and Hester, a construction firm whose office and main yard are in East Oakland. It is a family corporation managed by decedent's brother Michael who, as administrator of Thomas' estate, is the defendant herein.

Michael testified that Thomas had been with him long enough to supervise small jobs. On this occasion some one in the organization had instructed Thomas to pick up a laborer and go out and do a certain job. The superintendent probably gave Thomas such orders. ^* The witness did not know that of his own knowledge but said 'you could say that I assumed they [the orders] had been given.' Michael satisfied himself that at the time of the accident Thomas was in the process of going to Antioch to make some test holes for McGuire and Hester. He had with him some tools (an electric motor, augers, wrenches and other tools) of McGuire and Hester, equipment necessary for Thomas to do that job. Thomas needed some...