Desuza v. Andersack

• Decision Date: 12 November 1976
• Court: California Court of Appeals Court of Appeals
• Parties: Beatrice E. DeSUZA, as Administratrix of the Estate of Christy P. Bronson DeSuza, Deceased, Plaintiff and Appellant, v. Kathleen ANDERSACK, Defendant and Respondent. Civ. 47279.

Page 920

133 Cal.Rptr. 920

63 Cal.App.3d 694

Beatrice E. DeSUZA, as Administratrix of the Estate of Christy P. Bronson DeSuza, Deceased, Plaintiff and Appellant, v. Kathleen ANDERSACK, Defendant and Respondent.

Civ. 47279.

Court of Appeal, Second District, Division 4, California.

Nov. 12, 1976.

Rehearing Denied Dec. 6, 1976.

William B. Eley, Riverside, for plaintiff and appellant.

Ruston, Nance, McCormick & DiCaro, and Edward K. Nance, Jr., San Diego, for defendant and respondent.

JEFFERSON, Associate Justice.

Plaintiff Christy P. Bronson DeSuza sought damages for personal injuries from defendants Kathleen Andersack and Robert and Mae Selleck, arising out of a motorcycle-automobile collision. These named defendants moved for summary judgments shortly before trial, and the judgments were granted. Plaintiff Christy having died, plaintiff Beatrice E. DeSuza, as administratrix of Christy's estate, has appealed. The appeal as to the Sellecks has been dismissed. Our review, therefore, concerns only plaintiff's appeal from the summary judgment entered in favor of defendant Andersack.

Defendant's moving papers consisted for the most part of deposition testimony of four persons, including herself. On June 20, 1971, defendant and her husband George had spent some time at their vacation home near Perris, California. The couple stopped at the Good Hope Cafe, about a mile and a half away, to eat and pick up some eggs before leaving for Los Angeles. The cafe was operated by Kenneth and Joan Harmon, friends of the Andersacks. After arriving at the cafe, defendant remembered that she had left some apricots behind at her vacation home. After discussion and at the suggestion of Mr. Harmon, it was agreed that Mrs. Harmon would drive defendant to the Andersack place to pick up the apricots and also to pick up a sweater that Mrs. Harmon had left there on an earlier occasion.

Mrs. Harmon had been drinking beer on this day, a fact of which defendant was aware. While driving an automobile registered to her daughter, Susan Long, with defendant as a passenger, Mrs. Harmon collided with decedent DeSuza's motorcycle as she was en route to defendant's home. A test administered to driver Harmon several hours after the accident revealed a blood alcohol reading of .07.

We refer briefly to the legal rules concerning summary judgment. The summary judgment procedure is set forth in Code of Civil Procedure, section 437c. 'The purpose of the summary procedure is to penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues. (Citations.)' (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 114, 544 P.2d 1310, 1314.) The trial judge makes this determination concerning triable issues by examining the 'affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken.' (Code Civ.Proc., § 437c.) The judge may also draw reasonable inferences from the facts before him. (People v. Rath Packing Co. (1974) 44 Cal.App.3d 56, 61--64, 118 Cal.Rptr. 438.) 'Under well established rules governing summary judgment motions, the affidavits of the moving party are to be strictly construed and those of the opponent liberally construed. (Citation.) Nevertheless, a party opposing a motion for summary judgment which is supported by affidavits or declarations sufficient to sustain the motion, has the burden of showing that triable issues of fact exist.' (Chern, supra, 15 Cal.3d 866, at p. 873, 127 Cal.Rptr. 110, at p. 114, 544 P.2d 1310, at p. 1314.)

On this appeal, plaintiff offers two distinct theories as the bases for her claim that the record below reveals triable issues of fact concerning the liability of defendant Andersack for the injuries sustained by plaintiff's decedent. Obviously, if either theory is viable, summary judgment was improperly granted. (Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 109 Cal.Rptr. 724.) However, we find no merit in either of plaintiff's contentions, as we now explain.

Plaintiff's first theory is that defendant Andersack could be held vicariously liable for plaintiff's damages as driver Harmon's principal, i.e., that the facts support the existence of a principal-agent relationship between them. Civil Code section 2295 provides that '(a)n agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.' And the Restatement 2nd, Agency, in section 1, describes an agent as one who acts 'on (the principal's) behalf and subject to his Control. . . .' (Emphasis added.)

The right of the alleged principal to control the behavior of the alleged agent is an essential element which must be factually present in order to establish the existence of agency, and has long been recognized as such in the decisional law. (Flores v. Brown (1952) 39 Cal.2d 622, 628, 248 P.2d 922; Harpst v. Kirkpatrick (1972) 26 Cal.App.3d 482, 486, 102 Cal.Rptr. 621.)

In Flores, it was said that 'when one person is driving another's automobile for the latter's benefit an inference of agency may be drawn. (Citations.) In such cases the right to control may be inferred from the owner's power over the way his automobile should be operated, particularly when he is present on the trip. On the other hand, it is settled that if one person is riding in another's automobile, the right to control may not be inferred merely because the trip is undertaken for the passenger's benefit and the destination is selected by him. (Citations.)' (Flores, supra, 39 Cal.2d 622, at pp. 628--629, 248 P.2d 922, at p. 925.) Flores went on to hold that a gratuitous act--that of driving a vehicle for another--does not of itself give rise to an agency relationship. 'But it may not be held '. . . that one who performs a mere favor for another, without being subject to any legal duty of service and without assenting to any right of control, can be an agent. This is not the law. '' (Hanks v. Carter & Higgins of Cal., Inc. (1967) 250 Cal.App.2d 156, 161, 58 Cal.Rptr. 190, 194.)

In the case at bench, we have the situation of two friends embarking on an errand in which both had an interest, in an automobile which was in the process of being transferred from the driver's daughter to the driver. Neither the driver nor the passenger was asserting the right to control the conduct of the other. Plaintiff seeks to establish the control element by referring to Andersack's deposition testimony that she looked to the right when she and Harmon approached the intersection where the collision took place, arguing that this testimony supports the inference that Andersack was actively supervising Harmon's conduct. We disagree; it establishes nothing except that she looked, as passengers often do.

Plaintiff also relies upon the recent holding of Johnson v. Peterson (1974) 38 Cal.App.3d 619, 113 Cal.Rptr. 445, which found an agency relationship between the driver of an automobile and persons not present in the vehicle; it is readily distinguishable from the instant case, however, because of the familial relationship present. In Johnson, the driver was the defendants' sixteen-year old daughter, driving her parents' automobile and engaged on family business--taking a younger sister to purchase shoes at the defendant mother's request or suggestion.

In the case at bench, the evidence does not establish any type of relationship from which an agency could be inferred. While it is true that the existence or absence of agency is ordinarily a question of fact, triable by a jury, where the evidence, as here, is susceptible of only one inference, i.e., the absence of agency, no triable issue of fact is presented. (Seneris v. Haas (1955) 45 Cal.2d 811, 831, 291 P.2d 915.)

Nor is there sufficient evidentiary support for the imposition of vicarious liability on the theory that defendant Andersack was a co-adventurer of driver Harmon. A joint enterprise has been defined as '. . . an undertaking to carry out a small number of acts or objectives, which is entered into by associates under such circumstances that all have an equal voice in directing the conduct of the enterprise.' (Prosser, Law of Torts (4th ed. 1971), p. 475.) The author distinguishes joint enterprise from joint venture, because the latter, in his view, involves the factor of a common Commercial purpose. The California Supreme Court has said that '(a) joint venture exists when there is 'an agreement between the parties under which they have a community of interest, that is, a joint interest, in a common business undertaking, an understanding as to the sharing of profits and losses, and a right of joint control.' (Citations.)' (Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850, 863, 73 Cal.Rptr. 369, 375, 447 P.2d 609, 615.)

Clearly we are not dealing here with a joint undertaking for any commercial purpose. The situation resembles that of joint enterprise, and Prosser (at pp. 477 and 478) notes that 'it is generally agreed that something more (to impose vicarious liability) is required for a joint enterprise than the mere showing of contract or agreement to travel together to a destination for a common purpose. Something in the nature of a common business, financial or pecuniary interest in the objective of the journey is said to be essential. In this form the requirement of a mutual interest persists as a minimum in all courts, to the exclusion of all cases in which the parties are casually together for pleasure or for independent ends.' (Fns. omitted.) Thus, it has been said that '(t)he term 'joint enterprise' is sometimes used interchangeably with 'joint venture' and sometimes to describe a Nonprofit undertaking for the mutual benefit or pleasure of the parties. (Citations.) When used to describe a Business or Commercial undertaking, however, California decisions draw no significant...