Follansbee v. Benzenberg

• Decision Date: 07 January 1954
• Citation: 42 A.L.R.2d 832,122 Cal.App.2d 466,265 P.2d 183
• Court: California Court of Appeals Court of Appeals
• Parties: , 42 A.L.R.2d 832 FOLLANSBEE v. BENZENBERG et al. (two cases). Civ. 19686.

Page 183

265 P.2d 183

122 Cal.App.2d 466, 42 A.L.R.2d 832

FOLLANSBEE v. BENZENBERG et al. (two cases).

Civ. 19686.

District Court of Appeal, Second District, Division 3, California.

Jan. 7, 1954.

Hearing Denied March 3, 1954.

Wellborn, Barrett & Rodi, Karl B. Rodi and Owen F. Goodman, Los Angeles, for appellant and respondent Viviane M. Follansbee.

Bauder, Gilbert, Thompson & Kelly, Los Angeles, for appellants and respondents Philip G. H. Benzenberg and J. E. Coberly, Inc.

No appearance for respondent Fred A. Excobasa.

VALLEE, Justice.

Defendants Benzenberg, an individual, and Coberly, Inc., a corporation, appeal from a judgment in favor of plaintiff, as executrix of the estate of William U. Follansbee, III, deceased, in an action for his alleged wrongful death. Defendant Escobasa did not appeal. Plaintiff appeals from that part of the judgment denying her relief for expenses paid by her for medical treatment rendered to her deceased husband.

Defendant Coberly is a corporation engaged in business in Los Angeles as a new car dealer of Mercury and Lincoln automobiles. It maintains a service and repair department for these makes of cars; and with every new car sold, a service policy for various recheck periods is furnished the buyer.

Defendant Benzenberg was salesman employed by Coberly. His duties were to take care of prospective customers of Mercury automobiles who were referred to him. He handled sales until deliveries were effected. He also acquainted the purchasers with Coberly's service and repair facilities.

A few days prior to the accident, decedent telephoned Coberly with respect to the purchase of a new Mercury. The call was referred to Benzenberg. The latter thereupon undertook to sell decedent a new Mercury. He took him for a demonstration ride and showed him the available models and colors at the Coberly showroom. On Wednesday, February 14, 1951, decedent made a deposit of $500. Arrangements were made to complete delivery on the following Saturday.

On Saturday, February 17, decedent went into the Coberly showrooms. Except for registration and licensing, the automobile he expected to purchase was ready for delivery. License plates cannot be secured for an automobile without the signature of the purchaser of the vehicle upon the license registration application. After looking at the automobile, decedent went into the business office and gave the office attendant a check for the balance of the purchase price. The purchase price included the charge made by the state for license and registration. A bill of sale was given decedent. Decedent signed the license plate application. It was customary for Coberly to attend to registrations. Benzenberg testified it was the practice of Coberly to secure license plates for and registration of the automobiles, and the procurement of plates 'is handled routinely' by dealers. He also said an automobile sale is not complete, title does not pass, and 'a buyer cannot move the car [from the dealer' premises] without the car being registered with the State.' In nine-tenths of the cases, Coberly gives the customer paper plates, and asks him to come back later for the metal ones. In one-tenth of the cases, the plates are procured right away.

Decedent was offered the temporary paper plates; however, he expressed a desire to have permanent plates immediately attached to the automobile. Benzenberg offered to procure the metal plates. The office attendant furnished Benzenberg with the necessary papers and funds to enable him to obtain them. Before leaving the Coberly premises for the Automobile Club of Southern California--which, through arrangements with the Department of Motor Vehicles, issued permanent plates--Benzenberg informed decedent that the process would take about half an hour and suggested that he (decedent) accompany him rather than wait around the nearly vacant showroom. Decedent accepted the offer and the two proceeded in Benzenberg's car, the latter driving, to file the registration application and secure the license plates. A few moments later the accident occurred in an intersection collision between the automobile driven by Benzenberg and one driven by defendant Escobasa. Mr. Follansbee died on February 26, 1951.

Plaintiff, widow of Mr. Follansbee, brought the action as an individual, as one of his heirs, and as executrix of his will.

The court found: a the time of the accident the decedent was riding as a passenger, not as a guest, in the automobile driven by Benzenberg; Benzenberg and Coberly received benefit from the decedent for the ride during which the collision occurred; death resulted from injuries received in the accident; Benzenberg and Escobasa were negligent, and the negligence of each of them was a proximate cause of the injuries and death; Benzenberg was acting within the scope and course of his employment at the time of the accident.

Defendants' Appeal

Coberly and Benzenberg do not attack the finding that both drivers were negligent and that the negligence of each driver was a proximate case of decedent's injuries and death. Their only contention is that the court's findings that at the time of the accident the decedent was riding as a passenger, not as a guest, and that they received benefit from the decedent for the ride, are contrary to the evidence as a matter of law.

Under section 403 of the Vehicle Code, one who is a guest in an automobile of another cannot recover against the driver for injury or death unless he establishes that the injury or death proximately resulted from the intoxicaion or willful misconduct of the driver; whereas one who is a passenger can recover if the driver was simply negligent and the negligence was a proximate cause of the injury or death. The burden of proving that decedent was a passenger and not a guest was on plaintiff since it was not claimed that the death resulted from the intoxication or willful misconduct of Benzenberg. Gosselin v. Hawkins, 95 Cal.App.2d 857, 860, 214 P.2d 110; Whittemore v. Lockheed Aircraft Corp., 65 Cal.App.2d 737, 740, 151 P.2d 670.

Whether a person riding with another was a passenger or a guest is to be determined on the basis of the answer to the factual question: Did the rider confer a benefit on the driver for the ride? Malloy v. Fong, 37 Cal.2d 356, 376-378, 232 P.2d 241. It is for the trier of fact to determine whether the rider conferred a benefit or whether the ride was merely of a social nature. Darling v. Dreamland B. & U. Co., 44 Cal.App.2d 253, 257, 112 P.2d 338; Sullivan v. Richardson, 119 Cal.App. 367, 371, 6 P.2d 567; Gosselin v. Hawkins, 95 Cal.App.2d 857, 861, 214 P.2d 110. Once the trier of fact has determined the fact of benefit, the province of the reviewing court is simply to examine the record to determine whether this factual finding is substantially supported.

Section 403 of the Vehicle Code, in effect, defines a guest as a person who 'accepts a ride * * * without giving compensation for such ride'. A passenger is one who gives compensation for a ride. The term passenger is not limited to a person paying for his transportation in cash or its equivalent, but includes in its scope a person who gives such recompense for a ride as may be regarded as compensation therefor--that is, a return which may make it worth the other's while to furnish a ride. Malloy v. Fong, 37 Cal.2d 356, 377, 232 P.2d 241; Crawford v. Foster, 110 Cal.App. 81, 84, 293 P. 841. To constitute compensation, it is not necessary that it be established that the compensation received by the driver was given 'for such ride' in the sense that the rider obtained transportation for some independent purpose of his own. Where the trip was not primarily for a social purpose, it is sufficient to show that the driver was to derive a benefit from the transportation. Kruzie v. Sanders, 23 Cal.2d 237, 242, 143 P.2d 704. An anticipated or prospective profit is a benefit and may be as effectual as an immediate or direct compensation. Piercy v. Zeiss, 8 Cal.App.2d 595, 598, 47 P.2d 818; Crawford v. Foster, 110 Cal.App. 81, 84-88, 293 P. 841; Sumner v. Edmunds, 130 Cal.App. 770, 778-780, 21 P.2d 159.

If a driver receives a benefit through the acceptance of a ride, the fact that a like benefit might have been obtained in some other place or manner can make no difference. The acceptance of the ride furnished Benzenberg with an opportunity to create good will with decedent which might otherwise not have been accorded. An opportunity thus obtained is a direct and substantial benefit, and may well be as beneficial to the driver where he is selling something not necessarily connected with the ride as where he is demonstrating the car itself to a prospective purchaser or using it to take a prospect to look at a piece of land. The hope of future business is present, and such an opportunity is a real benefit to a salesman even though another place for his labors might have been chosen. Piercy v. Zeiss, 8 Cal.App.2d 595, 599, 47 P.2d 818. It is enough that there is 'any' consideration for the ride. Haney v. Takakura, 2 Cal.App.2d 1, 6, 37 P.2d 170, 38 P.2d 160.

It is admitted that decedent did not pay anything for the ride, but defendants must be deemed to have received compensation if decedent was taken along because it was considered by them to be to their business advantage that he be taken to the Automobile Club. Piercy v. Zeiss, supra. It was the general practice of Coberly to attend to the registration of the automobiles it sold. In one-tenth of the cases, it procured metal plates 'right away' and did not give the customer paper plates. Benzenberg testified that a sale is not complete and a buyer cannot move the car without it being registered with the state. There is nothing to suggest a social relationship between decedent and Benzenberg or that decedent or Benzenberg looked upon the former's trip in the automobile as one to be taken merely for pleasure. The ride was one in which...