Gillespie v. Rawlings

• Decision Date: 12 November 1957
• Court: California Supreme Court
• Parties: Elizabeth GILLESPIE, Plaintiff and Respondent, v. Mary B. RAWLINGS, Defendant and Appellant. L. A. 24611.

Page 601

317 P.2d 601

49 Cal.2d 359

Elizabeth GILLESPIE, Plaintiff and Respondent, v. Mary B. RAWLINGS, Defendant and Appellant.

L. A. 24611.

Supreme Court of California, In Bank.

Nov. 12, 1957.

Rehearing Denied Dec. 11, 1957.

Parker, Stanbury, Reese & McGee and White McGee, Jr., Los Angeles, for appellant.

Wayne Veatch, Henry R. Thomas, Los Angeles, Albert L. Garvey, Huntington Park, and Henry F. Walker, Los Angeles, for respondent.

SCHAUER, Justice.

Defendant appeals from a judgment for plaintiff, pursuant to jury verdict, in an action for personal injuries sustained when plaintiff was riding in an automobile operated by defendant. One count of the complaint alleges that plaintiff was a passenger for consideration, and one count alleges that defendant was guilty of wilful misconduct. Defendant urges that the evidence is insufficient to prove either that plaintiff was a passenger or that defendant was guilty of wilful misconduct. We have concluded that the judgment should be upheld upon the theory that plaintiff was a passenger, but not upon the theory that defendant was guilty of wilful misconduct.

On the day ot the accident (Sunday, February 7, 1954) plaintiff was defendant's employe, but there is no contention that she was acting in the course and scope of her employment on that day. ¹ Defendant was a real estate broker in Hermosa Beach. For four months before the accident plaintiff worked for defendant as receptionist and clerk. ² Defendant's husband, although he was licensed as a real estate broker, was not active in the business; defendant was the 'boss.' Plaintiff testified that defendant 'wanted me to learn all I could about the office so that when people came into the office I could have intelligent conversation with them regarding properties. * * * Even though I couldn't quote prices, or I couldn't sell.' Plaintiff answered affirmatively the question, 'Mrs. Rawlings told you, didn't she, that she thought that she'd * * * like to see you improve yourself, and would like to see you get a real estate license?' On one occasion defendant drove plaintiff to a property and showed plaintiff how to make a listing.

Plaintiff and defendant were members of the same church. Plaintiff was allowed time off, without loss of pay, to pursue church activities. On one occasion she attended a church lecture with the Rawlings, and on another occasion she attended a play with them. Plaintiff ordinarily worked five days a week, but on the following two occasions prior to the accident she worked on a normal day off: Defendant 'told' plaintiff to attend a Saturday television program advertising real estate; after the program plaintiff and the Rawlings spent about an hour answering telephone inquiries resulting from the program. Plaintiff went to the television program because when defendant said, 'You'll go. You are to go with us,' plaintiff 'felt that since Mrs. Rawlings was the boss that it was the right thing for me to do to go with her.' On a Sunday defendant asked plaintiff to go ot the office so that defendant could 'fix up her Social Security.' Plaintiff answered the telephone during this Sunday afternoon and at defendant's request went with prospective customers and showed them an apartment. On these two occasions plaintiff did not receive and did not expect to receive any pay.

The accident occurred (as stated, on a Sunday) while the Rawlings and plaintiff were driving to Palmdale. According to plaintiff's testimony the purpose of the trip was 'seeing the property (of the Rawlings and of a Dr. Lindsey) and the activity in the real estate there.' Defendant had said to plaintiff, 'I want you to go with us.' ³ Defendant planned to return from Palmdale by way of Venice in order to obtain the signature of one Harris on a paper. Defendant testified that although she and her husband planned to look at the Lindsey property, the journey 'was absolutely a pleasure trip.'

The circumstances of the collision were as follows: The weather was clear and sunny. Defendant was driving north on a two-lane highway which curved slightly toward her left. Defendant's husband (who was fatally injured in the collision) was in the rear seat. Plaintiff was asleep in the front seat. Jean Novobilsky, who was driving ahead of defendant at about 50 to 55 miles an hour, saw defendant in his rear view mirror. As defendant came behind the Novobilsky car she turned to her left, out of her lane of traffic, and collided almost 'head on' with a southbound car. There is no evidence of tire or skid marks attributable to defendant's car on the highway after the collision.

Section 403 of the Vehicle Code provides in material part that 'No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride * * * has any right of action for civil damages against the driver of such vehicle * * * on account of personal injury to * * * such guest during such ride, unless the plaintiff in any such action establishes that such injury * * * proximately resulted from the intoxication or wilful misconduct of such driver.'

As stated in McCann v. Hoffman (1937), 9 Cal.2d 279, 286, 70 P.2d 909, 'where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given.' (Accord, Clifford v. Ruocco (1952), 39 Cal.2d 327, 328 (footnote), 246 P.2d 651.) Some cases say that where the driver receives a tangible benefit which is a motivating influence for furnishing the transportation, the rider is a passenger. (Whitmore v. French (1951), 37 Cal.2d 744, 746(4), 235 P.2d 3; Thompson v. Lacey (1954), 42 Cal.2d 443, 447(6), 267 P.2d 1; Martinez v. Southern Pacific Co. (1955), 45 Cal.2d 244, 250(5), 288 P.2d 868; Harris v. Harfmann (1952), 113 Cal.App.2d 615, 616-617, 248 P.2d 501; Brandis v. Goldanski (1953), 117 Cal.App.2d 42, 48, 255 P.2d 36 (pointing out the difference in language between the Whitmore and Harris cases, on the one hand, and the Clifford case, on the other); Kroiss v. Butler (1954), 129 Cal.App.2d 550, 555-556, 277 P.2d 873; Ray v. Hanisch (1957), 147 Cal.App.2d 742, 748(10), 306 P.2d 30.) The cases which use the phrase 'a motivating influence' and those which use the phrase 'the motivating influence' do not, because of this difference in phraseology, state different principles. The thought conveyed by both groups of cases is that the tangible benefit, not mere pleasure, kindness, or friendship alone, must be the principal inducement for the ride to constitute compensation. As pointed out in Baker v. Novak (1956), 144 Cal.App.2d 514, 520, 301 P.2d 257 (adopting remarks of the trial judge), "it is knowledge common to everybody that in all such transactions a number of reasons may be involved. Thus when a man proffers an accommodation to a friend he may entertain in the back of his mind some thought that the friend may in the future be of some value to him. So when we speak of 'motivating influence' we mean something which is actually a moving cause of the ride and not some minor consideration that may have possibly entered the mind of the owner of the automobile." The District Court of Appeal in the Baker case says further, 'We find nothing in McCann v. Hoffman, 9 Cal.2d 279 (70 P.2d 909), in conflict, as to this point, with Whitmore v. French, 37 Cal.2d 744 (235 P.2d 3), or Thompson v. Lacey, 42 Cal.2d 443 (267 P.2d 1), or Martinez v. Southern Pac. Co., 45 Cal.2d 244 (288 P.2d 868). Where the context calls for the demonstrative and particular article 'the' that word is used. When, however, the court is directing its attention variously to one of several motives influencing conduct it uses the indefinite article 'a."

Among the benefits which, it has been held, are or could be found to be compensation are the prospect of a business profit from an anticipated purchase by the rider from the driver (Halbert v. Berlinger (1954), 127 Cal.App.2d 6, 19 (12a, 12b, 14), 273 P.2d 274 (airplane; rule is the same as in automobile cases); Whittemore v. Lockheed Aircraft Corp. (1942), 51 Cal.App.2d 605, 611, 125 P.2d 531 (airplane; see Whittemore v. Lockheed Aircraft Corp. (1944), 65 Cal.App.2d 737, 739-743 (1a, 1b), 151 P.2d 670, question of fact); Piercy v. Zeiss (1935), 8 Cal.App.2d 595, 599(2, 3), 47 P.2d 818; Riley v. Berkeley Motors, Inc., (1934), 1 Cal.App.2d 217, 220(1), 36 P.2d 398 (prospective purchaser of car driving it under direction of salesman was passenger); Crawford v. Foster (1930), 110 Cal.App. 81, 84-86, 293 P. 841), the creation of good will by the rendering of a service to a rider who has made a purchase (Follansbee v. Benzenberg (1954), 122 Cal.App.2d 466, 471(7), 265 P.2d 183, 42 A.L.R.2d 832; Whittemore v. Lockheed Aircraft Corp. (1942), supra, 51 Cal.App.2d 605, 611, 125 P.2d 531), the rider's assisting the driver where the driver is transporting goods for the rider for compensation (Schramko v. Saulter (1956), 146 Cal.App.2d 549, 551-552(2a-2b), 303 P.2d 1061; Lerma v. Flores (1936), 16 Cal.App.2d 128, 129-130, 60 P.2d 546), and the rendition or anticipated rendition of various types of service by the rider to the driver (Kruzie v. Sanders (1943), 23 Cal.2d 237, 241(5), 143 P.2d 704; Roberts v. Craig (1954), 124 Cal.App.2d 202, 211(11), 268 P.2d 500, 43 A.L.R.2d 1146; Christiana v. Rattaro (1947), 81 Cal.App.2d 597, 598-599, 184 P.2d 682; Fachadio v. Krovitz (1944), 62 Cal.App.2d 362, 363, 144 P.2d 646; Weddle v. Loges (1942), 52 Cal.App.2d 115, 121-122, 125 P.2d 914; Duclos v. Tashjian (1939), 32 Cal.App.2d 444, 450, 451, 90 P.2d 140 (plaintiff's decedent accompanied defendant to repair defendant's pump; the fact that decedent anticipated the benefit of employment 'does not compensate and destroy by balancing an independent and separate compensation for the ride given by the rider to the driver'); Haney v. Takakura (1934), 2 Cal.App.2d 1, 3-4(1), 37 P.2d 170, 38, P.2d 160).

'(W)here the relationship...