Gosselin v. Hawkins

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

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. 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 San Rafael station.

Defendant Hawkins remembered nothing specific about the events of September 6 although he had a general recollection of having seen plaintiff in defendants' office. The United States Rubber Company sales manager for northern California testified that the two men were in his office on the 6th, discussing with him plaintiff's new activities and plaintiff's efforts to have more tires allocated to him. Plaintiff denied that such a meeting took place on the 6th, but to the extent that the conflict is material this court must assume the jury found as true the testimony of defendants' witnesses.

At the point where the accident occurred, the surface of the road was cracked and rough, not having been repaved since 1914. At that point the road turns left, but slopes to the right, the opposite of a banked highway curve. A telephone pole struck by the car was 12 inches from the curb. Witnesses estimated the speed of the car just before the accident as 'a high rate of speed' and "tween sixty and seventy miles an hour.' The extensive evidence concerning plaintiff's injuries and medical expenses is not material on this appeal and will not be set forth.

Legal Issues.

The parties agree that one who is simply a guest cannot recover unless he shows the driver to have been guilty of wilful misconduct, whereas one who is a passenger (invited to ride because of an advantage to the driver) can recover if the driver was simply negligent. Furthermore, plaintiff concedes that the jury could reasonably have found that Hawkins was not guilty of wilful misconduct.

Guest or Passenger?

In its instructions, the court properly defined 'passenger' and 'guest' and the degree of care due to each. The jury impliedly found that plaintiff was a guest and not a passenger. Plaintiff contends that the evidence shows, as a matter of law, that he was a passenger and likewise as a matter of law he did not assume the risk nor was he contributorily...