Fedler v. Hygelund

• Decision Date: 11 September 1951
• Citation: Fedler v. Hygelund, 106 Cal.App.2d 480, 235 P.2d 247 (Cal. App. 1951)
• Court: California Court of Appeals
• Parties: FEDLER v. HYGELUND et al. Civ. 7923.
• Writing for the Court: VAN DYKE; PEEK, J., and SCHOTTKY

Page 247

235 P.2d 247

106 Cal.App.2d 480

FEDLER v. HYGELUND et al.

Civ. 7923.

District Court of Appeal, Third District, California.

Sept. 11, 1951.

Russell A. Harris, Sacramento, for appellants.

Matthew E. Marsh, Coyle E. Bybee, Chico, for respondent.

VAN DYKE, Justice.

Respondent Fedler brought this action to recover damages for personal injuries sustained while riding in a truck driven by appellant Rippin. The truck was owned by appellant Hygelund. The complaint alleged that respondent was a passenger and that the accident and resulting injuries to him were caused by the negligence of Rippin in operating the truck. Appellants denied that respondent was a passenger and alleged that he was a guest. Negligence was denied and it was alleged that the accident was unavoidable. A jury returned a verdict in the sum of $30,000 for respondent against both appellants and judgment was entered in that amount.

Appellants first contend that the evidence is insufficient to support the implied finding of the jury that the respondent was a passenger and not a guest within the meaning of Section 403 of the California Vehicle Code. It appears from the record that appellant Hygelund owned and operated the Butte Tallow Company located in Chico, California; that Rippin was his employee and at the time of the accident was driving the truck within the scope of that employment; that respondent had been an employee of Hygelund, but at the time of the accident was under a total disability rating by reason of undulant fever contracted some time previously; that while respondent had been so employed he held the position of head butcher and foreman of the Chico plant.

Appellant Rippin made regular trips to various localities in Hygelund's truck to collect animal refuse for use in the tallow business. He testified that about two weeks before the accident plaintiff had expressed the desire to accompany him on one of his trips to Susanville, but that approximately a week later, when he asked respondent if he then wanted to go on a trip about to be made, respondent said that he did not then feel well enough. About a week later Rippin again asked respondent if he wanted to go to Susanville the following day. Respondent's version of that conversation was as follows: Rippin said to respondent, 'How about going along to Susanville with me tomorrow? It is a long, tiresome trip. We will probably run into a little snow and the road will be icy and we will have to put on chains. * * * Probably it will take us fifteen to sixteen hours.' Respondent replied that he would go on the trip. The two men departed in the truck the following morning at 4 A.M. from Chico. When they arrived at Lassen Lodge respondent assisted Rippin in putting chains on the truck and later, when they were no longer needed, assisted him in removing them. At Susanville the truck was loaded with offal, respondent assisting in the loading by holding the barrels over the edge of the truck while Rippin emptied the contents into the truck. Respondent also tallied the weights as Rippin loaded the truck. The loading completed, the two men left on the return journey and the accident occurred at a place called Payne's Creek. Before going on this particular trip respondent had taken similar trips to other localities with other employees of appellant Hygelund. These trips were during the period that respondent was disabled from his fever. Concerning these he testified that he did not 'invite himself' on these trips; that he did some work on these trips such as helping out with the loading; that on one occasion he went to Susanville will the company's superintendent and on this trip he poured concrete, and cut a door in a wall; that there had been no agreement he was to receive pay for this work, yet he was paid some four days thereafter, and the company also paid the cost of his meals and hotel bill during the trip. There was conflict in the evidence concerning the arrangements that were made for the trip on which he received his injuries. For instance, appellant Rippin testified along the general line that he invited respondent to go on the trip merely as a matter of mutual social enjoyment; that he did not stipulate for or expect any help in the doing of his work, because that was his job and he was capable of doing it; that the two men were close neighbors and well acquainted; that there was no occasion for him to solicit aid. Under the familiar rule, we must consider the evidence in the light most favorable to respondent.

Section 403 of the Vehicle Code defines a guest as one who accepts a ride without giving compensation for such ride. The proper construction of this language has frequently received the attention of our appellate courts, and in McCann v. Hoffman, 9 Cal.2d 279, at page 283, 70 P.2d 909, at page 911, the court reviews numerous cases on the subject and declares; '* * * the nature of the compensation as contemplated by such a statute is as variable as the particular facts involved'; that 'many benefits or considerations other than cash or its equivalent have been held to be payment or compensation within the meaning of the language adopted by the Legislature'; and that compensation could exist 'when the plaintiff accepted the ride at the behest of the driver to assist the latter in arriving at his destination or fulfilling the object of the journey.' We think the contention here advanced must be resolved by considering whether from this record the jury could reasonably infer that the respondent did accept the ride at the behest of Rippin to assist him in fulfilling the objects of the journey he was about to make.

The discussions that occur when the owner or driver of an automobile takes another into the car for a ride are apt in most cases to be sketchy and fragmentary since neither anticipates an accident, nor does either have the guest statute in mind. They are seldom conscious of making anything in the nature of a bargain. Such was the case here. From what occurred the jury could reasonably have concluded that Rippin requested respondent to accompany him; that when he did so he pointed out the difficulties that would probably be incurred and that the trip would be long and tiresome, consuming some 15 to 16 hours; that chains would have to be used. The jury were further entitled to consider the past relations of respondent and the appellants and the fact that he had been useful in small ways on other trips he had taken. We think the jury were sufficiently supported by the record in their conclusion that there was a common understanding between the two men that the suggested aid would be forthcoming and that it constituted compensation for the ride. Christiana v. Rattaro, 81 Cal.App.2d 597, 184 P.2d 682; Yates v. J. H. Krumlinde & Co., 22 Cal.App.2d 387, 71 P.2d 298.

It is next contended that the evidence is insufficient to support the implied finding of the jury that appellant Rippin was negligent in the operation of the truck. The testimony relative to this contention shows the following: The truck was a two-ton Chevrolet equipped with a steel box body approximately 4 feet high and 12 feet long. At Susanville it was loaded with about 5 tons of animal refuse. The two men stopped at Inskip Inn for coffee, at which time Rippin observed that he had a 'short pedal', that is, the brake pedal was two inches from the floor board. He testified that with a short pedal the driver 'pumps' the brake pedal to get more pressure. The brakes were hydraulic. After leaving the inn, Rippin shifted from the first to the fourth or highest gear. As the truck reached the crest of Inskip grade its speed was 30 to 35 miles per hour. After starting down the grade Rippin shifted back to third gear, but the truck continued to gain speed. He then endeavored to apply the brakes and discovered that they did not take effect. He then attempted to change to a lower rear axle gear by means of a switch located on the dashboard. Still gaining speed, he attempted to shift to second gear and at that point discovered that the clutch was out. The truck proceeded down the grade out of control until it turned over, injuring respondent. Rippin said he did not known what caused the brakes to go out, but as to the clutch he said, 'I could have jerked it when I flipped it into the two-speed and tore that out.' There was evidence that the mechanical condition of the truck had been checked some three weeks before the accident and that the brakes were at that time in satisfactory shape. After the accident it was found that the brake cylinder on the right rear wheel had exploded, due in the opinion of one witness to overheating, also that the brakes showed signs of excessive wear, the brake bands having only 40% efficiency remaining. On that type of truck the bursting of the brake cylinder eliminates brake efficiency except as to the mechanically-controlled emergency brake. Rippin testified that he had used the brakes considerably going downgrade with the heavy load and that could have had something to do with his losing the brakes; that the brakes could have burned out. While Rippin also testified that he had observed nothing wrong with the equipment until the failure of the brakes and the going out of the clutch after he had already embarked upon the down-grade, the jury were not obliged to believe that such was the case and could infer from the observation of the short...