Nault v. Smith

• Citation: 14 Cal.Rptr. 889,194 Cal.App.2d 257
• Parties: Lowell Raymond NAULT, by and through his guardian ad litem, Gerard Nault, and Gerard Nault, individually, Plaintiffs and Appellants, v. Deborah M. SMITH, a minor, Ritchie C. Smith, Betty Smith, Defendants and Respondents. Civ. 19285.
• Decision Date: 26 July 1961
• Court: California Court of Appeals

Page 889

14 Cal.Rptr. 889

194 Cal.App.2d 257

Lowell Raymond NAULT, by and through his guardian ad litem, Gerard Nault, and Gerard Nault, individually, Plaintiffs and Appellants, v. Deborah M. SMITH, a minor, Ritchie C. Smith, Betty Smith, Defendants and Respondents.

Civ. 19285.

District Court of Appeal, First District, Division 1, California.

July 26, 1961.

Jack L. Burnam, Joseph L. Bortin, San Francisco, for appellants.

Hardin, Fletcher, Cook & Hayes, Oakland, Cyril Viadro, San Francisco, of counsel, for respondents.

TOBRINER, Justice.

We deal here with the construction of the guest statute (Vehicle Code section 17158). We find no error in the trial court's granting of a nonsuit as to appellant's ¹ first count upon his opening statement because of his failure to state that he would prove that respondents received compensation for the ride during which appellant incurred injury. Nor do we find error in the court's rejection of appellant's instructions on his second count that respondents' false assumption that appellant possessed a license would constitute consideration to respondents for the ride. As to the third cause, however, we do find error. We do not believe that the guest statute immunizes respondent Mrs. Smith from liability if she negligently entrusted the involved vehicle to her daughter and if she knew, or should have known that her daughter was not a licensed driver and not capable of operating the vehicle.

Appellant, 'Skip' Nault, an eighteen year old amateur tennis player, entered a tennis tournament sponsored by the Orinda Country Club and paid his entry fee of $5.50. The fee entitled him to free overnight lodging. The tournament director arranged for appellant and two other boys who played in the tournament to stay with respondents the night of June 7, 1958. Following the day's activities at the tournament, appellant and the other boys drove to respondents' home in respondents' jeep. Debbie Smith, the daughter of the owners of the jeep and a respondent herein, drove back to the house; her mother sat next to her in the front seat.

After dinner at the Smith's home, Debbie, with appellant and the other boys, went to the village to buy milk. Although Debbie did not have a driver's license her mother allowed her to drive the jeep to the store accompanied by appellant as the assumed licensed adult driver. Mrs. Smith thought that appellant had a license, because of Debbie's statement, which appellant did not hear, that "Skip is over eighteen and he is licensed." In fact appellant had no license and had not indicated that he had one. Nor did appellant realize that Debbie was unlicensed.

On the way home Debbie picked up three other boys. They drove north on Orinda Highway and, at Manzanita Drive, Debbie, driving between 20 and 25 m. p. h., suddenly made a right turn. When, as a consequence, appellant was thrown out of the jeep he incurred serious injuries.

Appellant alleges four separate causes of action: in the first he charges that he 'was riding as a passenger' in the jeep at the time of the accident and asserts his passenger status as a result of his payment of the tournament entry fee of $5.50, which entitled him both to lodgings as well as to an arrangement between respondents and the country club; he then charges Debbie with negligence in the operation of the jeep. The second cause of action claims the liability of Mrs. Smith for Debbie's negligence; it alleges appellant's status as a passenger because he was sent to the store by her mother under the erroneous assumption that he had a license which would enable her daughter to operate the jeep lawfully. The third cause charges Mrs. Smith with negligence in entrusting the jeep to an unlicensed driver who 'was not capable of operating a motor vehicle safely under either ordinary, or extra-ordinary circumstances and conditions, all of which facts * * * [Mrs. Smith] well knew or, in the exercise of ordinary care, should have known.' Lastly, appellant charged Debbie with willful misconduct in the operation of the jeep.

Following appellant's opening statement, the court granted respondents' motion for nonsuit as to the first cause of action on the ground that appellant did not allege any consideration to respondents or an agency relationship between respondents and Orinda Country Club. The court denied motions for nonsuit on causes two and three but required appellant to augment the opening statement and complaint to allege compensation to respondents in appellant's act of accompanying Debbie to the store at Mrs. Smith's request for the purpose of obtaining groceries. The court indicated that a nonexistent license could not provide the compensation requisite for appellant's status as a passenger.

As to the third count, against Mrs. Smith, the court refused to instruct the jury that if it found that Mrs. Smith negligently entrusted the jeep to Debbie and that such negligence proximately caused Skip's injuries, Mrs. Smith would be liable, irrespective of appellant's status. The court, instead, instructed the jury that, if appellant were a guest, the owner would not be liable under any theory except for willful misconduct.

The jury returned a verdict for respondents on all counts submitted to it; appellant appeals from the judgment of nonsuit and the judgment entered on the jury verdict. We shall separately analyze the issues as to each count.

1. The first cause of action.

The court granted a nonsuit upon appellant's opening statement on this count. Appellant raises both a procedural and substantive objection. We turn, first, to the procedural point.

The opening statement revealed self-evident gaps in appellant's claim of liability. The court could properly inquire whether appellant as plaintiff, charged with the burden of proof, could overcome the deficiencies described by the court, and make out a case. But appellant's answers to the court's inquiries only served to confirm the insufficiencies. While it is true that a nonsuit may be granted only when a plaintiff has undertaken to state all the facts which he intends to prove (Paul v. Layne & Bowler Corp., 1937, 9 Cal.2d 561, 564, 71 P.2d 817), appellant here, in ultimately stating to the court his whole projected case, affirmatively showed its inadequacy. The court was not required to let the case proceed to trial only to reach its ultimate nemesis, after all the proof had been introduced, in appellant's failure to establish liability.

Having concluded that appellant fails as to his procedural point, we turn to the substantive one. The cases do not support appellant's theory that the tournament entry fee entitled him to accommodations which were to be assigned by the club; that this 'included free overnight lodging if needed,' and that in furnishing such service the Smiths became the ostensible agents of the club. Indeed, appellant even posited a more sweeping theory: that he was not required to prove that the Smiths acted as the club's agent, and that a gratuitous rendition of such services would be enough. To the court's question, 'Are you going to show agency on the part of these people, or are you going to show some compensation running to them. Now, if you aren't, I am going to grant a nonsuit * * * because you haven't alleged that,' appellant answered, 'We will stand pat on the first count,' which did not include such allegations.

We must first determine whether the Smith's gratuitous rendition of the asserted obligation of the club to appellant would meet the requirement of section 17158 (previously § 403) of the Vehicle Code that appellant was not a 'person who as a guest accept[ed] a ride * * * without giving compensation for such ride * * *.' ²

We find no cases that hold that the gratuitous assumption of another's obligation satisfies the statutory requirement; the decisions generally construe the words 'giving compensation for such ride' to signify the giving of some 'tangible benefit' to the 'person who furnishes the ride, a benefit which is a motivating influence for supplying the transportation.' Benjamin v. Rutherford, 1956, 146 Cal.App.2d 561, 562, 303 P.2d 1079, 1080; Shapiro v. Bookspan, 1957, 155 Cal.App,2d 353, 357, 318 P.2d 123; Martinez v. Southern Pacific Co., 1955, 45 Cal.2d 244, 250, 288 P.2d 868. If the Smiths accommodated appellant as a gratuity they received nothing of 'tangible benefit'; the benefit would, indeed, flow not to the Smiths but to appellant. The Smith's gratuitous assumption of the club's claimed obligation would not, then, suffice.

We turn, second, to appellant's argument as to agency: that appellant 'from the acts' of the Smiths, as 'a reasonable person' could 'infer that they had assumed to act as agents' and that they, therefore, should be treated as ostensible agents. The argument assumes that the club, as principal, obtained compensation in the form of the registration fee and that such payment would cover the Smiths as agents. It is true that the Supreme Court has held that the principal of an agent driver will be included within the definition of one who furnishes the ride. Malloy v. Fong, 1951, 37 Cal.2d 356, 376-377, 232 P.2d 241. Hence appellant would contend that the tournament fee reached, thru the Smith's agency, as far as the ride. Since Mrs. Smith 'sent' appellant to obtain the milk for the expected breakfast waffles, appellant performed an errand to get the food for which he ahd already paid and which the Smiths, as agents, were obliged to furnish. Appellant, then, according to this theory, gave the Smiths a derivative compensation for the ride.

The first difficulty with this position lies in the fact that appellant did not set out in his pleadings or assert in his opening statement any agency of the Smiths. As we have pointed out supra, one reason for the nonsuit emanated from appellant's apparent stated rejection of the agency of the Smiths. The court asked if appellant would 'show agency on the part of these...