Duff v. Schaefer Ambulance Service

• Decision Date: 02 May 1955
• Citation: 132 Cal.App.2d 655,283 P.2d 91
• Court: California Court of Appeals Court of Appeals
• Parties: Matelie DUFF and S. E. Duff, husband and wife, Plaintiffs and Appellants, v. SCHAEFER AMBULANCE SERVICE, Inc., a corporation, Carl A. Bellanzi, Sigmund Arywitz, International Ladies' Garment Workers' Union, an unincorporated association, and Samuel Otto and John Ulene, members thereof, Defendants, Schaefer Ambulance Service, Inc., et al., Respondents. Civ. 20420.

Page 91

283 P.2d 91

132 Cal.App.2d 655

Matelie DUFF and S. E. Duff, husband and wife, Plaintiffs and Appellants, v. SCHAEFER AMBULANCE SERVICE, Inc., a corporation, Carl A. Bellanzi, Sigmund Arywitz, International Ladies' Garment Workers' Union, an unincorporated association, and Samuel Otto and John Ulene, members thereof, Defendants Schaefer Ambulance Service, Inc., et al., Respondents.

Civ. 20420.

District Court of Appeal, Second District, Division 2, California.

May 2, 1955.

Rehearing Denied May 17, 1955.

Hearing Denied June 29, 1955.

William K. Young, Los Angeles, for appellants.

Lynch & Reilly, Los Angeles, for respondent Sigmund Arywitz.

De Forrest Home, Los Angeles, for respondent Union.

Crider, Tilson & Ruppe, Los Angeles, for respondents Schaefer Ambulance Service, Inc., and Carl A. Bellanzi.

FOX, Justice.

This appeal is the aftermath of three actions for the recovery of personal injury and property damages arising out of an intersectional vehicular collision.

The accident occurred at the intersection of Hope and Temple Streets in Los Angeles on the evening of March 6, 1952, between the hours of 8:30 and 9:00 o'clock. The vehicles involved were a 1953 Ford automobile owned and driven by defendant Arywitz and an ambulance belonging to the Schaefer Ambulance Service, Inc., (hereinafter called Schaefer) which was being operated by defendant Carl A. Bellanzi. Plaintiffs Matelie Duff and Callie Williams, both of whom sustained personal injuries, were riding in the Arywitz car. It was proceeding south on Hope when it collided with the eastbound ambulance. The latter was responding to an emergency call at the time of the collision. The occupants of the Ford were bound for downtown Los Angeles after attending a television broadcast in Hollywood sponsored by the Los Angeles County Conference on Community Relations (hereinafter called the County Conference).

Mrs. Duff (hereinafter termed appellant) instituted this action on the theory of negligence for the recovery of damages from defendants Arywitz, Schaefer, Bellanzi, the International Ladies' Garment Workers Union (hereinafter designated Union), and two of its members, Samuel Otto and John Ulene. It was alleged that appellant was a passenger in the Arywitz car and that Arywitz was the agent of both the Union and the two named members and was acting within the scope of his employment when the accident occurred. Appellant's husband was joined as a co-plaintiff to recover for loss of consortium. Callie Williams likewise filed an action for damages based on the alleged negligence of the above named defendants. A third action, restricted to property damage resulting from the accident, was brought by Schaefer against Arywitz alone. Among the defenses interposed by Arywitz and the Union to appellant's complaint was the claim that appellant was a guest in the Arywitz car and that Arywitz was neither intoxicated nor guilty of wilful misconduct at the time of the impact. The answer of defendants Schaefer and Bellanzi, so far as is here material, denied negligence in Bellanzi's operation of the ambulance.

The three cases were consolidated for trial before a jury and resulted in verdicts in favor of all the defendants in the Duff and Williams personal injuries actions. Appellant Duff's motion for a new trial was denied. In the property damage action, Schaefer prevailed against Arywitz. The judgment in this latter action, and the judgment adverse to Callie Williams are now final. Mrs. Duff is the sole appellant. She assigns as prejudicial error (1) various rulings on the admissibility of evidence; (2) the giving of certain instructions and the refusal to give others requested by her; and (3) the court's misconception of its duty in ruling on the motion for new trial. Her contentions cannot be sustained.

Background Facts.

The evidence shows that appellant was a resident of South San Gabriel, a suburb of Los Angeles. She was employed as a seamstress in the garment industry. She became a member of the respondent Union in 1937. At the time of the accident, appellant was vice president of Sportswear Local 266, an affiliate of the Union, and chairman of the local's Educational and Entertainment Committee. These were honorary positions. She received no pecuniary compensation at any time from the Union for the performance of these functions, in which she engaged outside her working hours. On certain occasions when she was involved in activities authorized by the Union she was reimbursed by the Union for her meals and transportation costs. Appellant testified that her responsibilities as a non-paid functionary of the Educational and Entertainment committee included the gathering of material of educational value for presentation on the committee's informational programs for the membership.

Appellant testified that when she became committee chairman in 1943 she informed one Louis Levy, since deceased, but then an officer of the union, that she did not drive a car and would have difficulty in returning home late at night from Los Angeles. Levy, she stated, assured her that transportation would be provided either to her home or to the Pacific Electric Railway Terminal in Los Angeles when she was required to remain in, or come to Los Angeles on behalf of the Union.

Arywitz testified that he occupied the position of director of the Education and Public Relations Committee of the Union. He was employed directly by the International Union in New York City, from whom he received a salary of $85 a week. His job was to formulate and carry out a program of educational and recreational activity. This entailed the organization of classes, holding institutes, publishing a Union newspaper, and planning dances, parties and picnics. His duties brought him in contact with defendant Ulene, an officer of Local 266 and manager of the Union's Joint Sportswear Council, and with committee members of the local unions with whom he had occasion to discuss his projects. He sometimes met with officers of Local 266 to apprise them of his contemplated programs. He worked under the supervision of the Pacific Coast Regional Director of the International Union, in whose headquarters his own office was located. He was not subordinate to any official of the local unions or of any of the executive committees.

Arywitz testified that he kept fairly regular office hours--normally from about 9:30 a. m. to 6:00 p. m. He spent about 80% of his working time in the office, where he attended to the editing of the paper and his work of dictation and correspondence. Only infrequently did he program evening activities for Union members because of the poor response. He owned the Ford car which he used, in part, in connection with his job. In addition to his salary he received a $50 weekly expense allowance. This included the cost of operating his car for business purposes and charges incurred for food and drinks in the entertainment of out-of-town visitors and civic and political personalities. Arywitz testified that he was never told by any one that it was his duty, as a part of his job, to transport Union members anywhere at any time. Occasionally, he took a member who did not have transportation to a party or some other type of function, but this he did as an individual, out of friendship for and courtesy to such person. He pointed out that other Union members who were not paid employees also transported fellow members to such affairs. He testified that in 1951, at the annual meeting of the County Conference, which he attended in his individual capacity because he believed in their objectives, he gave appellant a ride in his car downtown out of friendship to enable her to board a streetcar to her home. Under examination by appellant's counsel as to purported occasions during the period 1949 to 1951 when he allegedly transported appellant in his car on Union business, Arywitz denied that he drove her to look for Union picnic sites, to purchase a gift for Union entertainments or toys for its Christmas party.

On February 27, 1952, a week before the accident, appellant and Mrs. Williams attended a meeting of delegates to the Sportswear Joint Council where defendant Ulene announced that on March 6th a dinner and lecture would be given at the Case Hotel in downtown Los Angeles by an organization known as the Religion and Labor Council. Dinner was to be served at 7:00 p. m. and the speaker's address was scheduled for 8:00 p. m. Reservations for the dinner were required by noon on March 5th. The Joint Council voted that delegates who attended would be reimbursed for the dinner charges of $2 by the Union upon submission of a voucher. Appellant made no reservation to attend. It was established that the Religion and Labor Council is an independent organization with its own headquarters and officers, and conducts meetings periodically on various subjects throughout the city. It was affiliated with the American Federation of Labor and the Union.

During a union meeting the night before the accident, which appellant did not attend, the minutes disclose that Mr. Ulene announced the receipt 'of an invitation for two members to attend the last broadcast of the season of the Los Angeles County Conference on Community Relations over Station KTTV on March 6th. Volunteers were called for, and Sisters Bayer and Williams volunteered. It was suggested that Sister Billie Duff (appellant) may want to go. Sister Williams advised that she would advise Sister Duff if she wants to attend.' At the conclusion of the meeting, Mrs. Williams called at appellant's home, but found she was out. She left a note for appellant telling her to 'come dressed, we are going to be on TV.' When appellant left home the next morning, she was unaware of the nature of the TV program referred to. In the meantime, Mrs Bayer, who was the president of Local 266, also an unpaid position, and Mrs. Williams decided to have dinner in Hollywood after the...