Gosselin v. Hawkins, 14116

• Court: California Court of Appeals
• Citation: 95 Cal.App.2d 857,214 P.2d 110
• Decision Date: 03 February 1950
• Docket Number: No. 14116,14116
• Parties: GOSSELIN v. HAWKINS et al.

Page 110

214 P.2d 110 95 Cal.App.2d 857 GOSSELIN
v.
HAWKINS et al. No. 14116. District Court of Appeal, First District, Division 1, California. Feb. 3, 1950.

Page 111

[95 Cal.App.2d 858] Harry W. Falk, Eureka, Attorney for appellant.

Bronson, Bronson & McKinnon, San Francisco, Attorneys for respondents.

BRAY, Justice.

From a judgment in favor of defendants entered upon a jury verdict, and after denial of motion for new trial, plaintiff appealed.

Question Presented.

Plaintiff's main contention is that as a matter of law the evidence shows (1) plaintiff was a passenger and not a guest in defendants' car; (2) that defendants were negligent; and (3) that plaintiff was not contributorily negligent nor did he assume the risk of injury.

Facts.

Plaintiff in 1946 was in business in Eureka, selling and servicing automobile and truck tires at retail. He had held a franchise with defendant United States Rubber Company for the last nine years. Defendant Hawkins was a sales representative for United States Rubber Company, his territory extending from the Golden Gate Bridge north to the Oregon line. Hawkins called on plaintiff about once a month to take orders for new tires and retreading business. Plaintiff prepared to expand his business by taking on the agency for International Harvester and dealing in farm and industrial equipment. He had signed the franchise agreement in May, and left Eureka on September 4 to go to San Francisco and confer with International Harvester officials. He took the train to San Rafael, and then the bus to San Francisco. He arrived in San Francisco the morning of September 5 and his discussions with the officials continued through the 6th.

The evidence as to what happened on September 6 is rather sketchy, and conflicting on some points. Plaintiff testified that while in San Francisco he phoned United States Rubber Company to see about obtaining certain tires of which the supply was short; that Hawkins got on the wire, asked plaintiff to see him and hear about some new tires which were coming out, and after plaintiff said he lacked time, Hawkins suggested they have dinner together, after which he would drive plaintiff to San Rafael to catch the train there. Plaintiff testified that Hawkins picked him up around 4:30 p. m. at the International Harvester office, that they visited the Lambert Tire and Sales Company to see a new wheel aligning machine, and finally went to a restaurant on Lombard street. [95 Cal.App.2d 859] According to plaintiff, Hawkins talked during the meal about the new tires to be brought out by United States Rubber Company, their prices, construction, and methods of interesting the public in them.

The next thing plaintiff remembers is being in Hawkins' car, proceeding toward San Rafael. He recalled that at a particular point approaching San Rafael he suggested that Hawkins drive slower. In general, however, he remembered Hawkins as driving in a normal manner. Plaintiff's next recollection was of waking up in a hospital later that evening, after the accident.

The train was scheduled to depart from San Rafael at 8:00 p. m. The two men were seen at the train station between 8:00 and 8:30, at a time when the train had already left. After entering and being in the station for just a few minutes, they turned around and walked out again. Shortly thereafter they were found unconscious in the accident here involved, the car being found off the road against a tree in a residential district about one mile north of the...