Neuser v. Britto

• Decision Date: 13 October 1965
• Citation: 46 Cal.Rptr. 898,237 Cal.App.2d 444
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth NEUSER, Plaintiff and Appellant, v. Arthur H. BRITTO, Defendant and Respondent. Civ. 22016.

Page 898

46 Cal.Rptr. 898

237 Cal.App.2d 444

Elizabeth NEUSER, Plaintiff and Appellant, v. Arthur H. BRITTO, Defendant and Respondent.

Civ. 22016.

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

Oct. 13, 1965.

Albert E. Levy, San Francisco, for appellant.

Bronson, Bronson & McKinnon, San Francisco, for respondent.

SIMS, Justice.

Appellant, the plaintiff below, had appealed from a judgment entered in favor of respondent upon the granting of the latter's motion for a nonsuit in an action in which she sought to recover damages for personal injuries received as a result of a collision allegedly caused by his negligence while she was riding in a vehicle operated by him.

No claim is made that respondent was intoxicated or that he engaged in wilful misconduct. The sole issue is whether the evidence reflects that at the time of the accident appellant was as a matter of law a guest in respondent's vehicle; or, as it may be stated conversely, is there any evidence which would support a finding that she was other than a 'person who as a guest accepts a ride * * * without giving compensation for such ride.' (Veh. Code, § 17158.)

Appellant, who had previously been in California, returned to San Francisco in August or September 1961, and enrolled at and attended San Francisco State College. She first met respondent in September 1961 at the home of Frank Collasto, a fellow employee of respondent, with whom respondent subsequently took up residence. Thereafter she him on three or four occasions before October 11, 1961, the date on which the accident occurred. She generally saw him at the Collasto premises, where she had eaten some meals, and had been out with him and others driving around in his car.

At some time during the day in which the accident occurred, appellant received an invitation for herself and her roommate to come over to the Collasto premises for dinner. She arrived at the apartment about 5:30 p.m. and found respondent and Collasto there. Her roommate arrived about fifteen minutes later. Appellant remained at the apartment eating dinner and doing the dishes until about 8:00 p.m. when she departed with respondent in his car on the trip which resulted in the accident.

According to appellant's testimony during the course of the evening, shortly after her arrival and before dinner, respondent 'told me that * * * [Bud Carson] was going to move into the apartment, and that he had to help him, you know. He said he would, and he asked me if I would help and I said yes, I would * * *. He said a bed and the other fellow's clothes and a few other articles [were going to be moved].' The trip had not been mentioned in the original invitation or prior to appellant's arrival for dinner. No plans were suggested at that time other than just going over and picking up the belongings and then coming back. Appellant had not met Carson before, had never been to his apartment, had never seen the belongings to be moved, and did not know how much there was. Respondent told her and she understood all along that Carson was waiting at his place and could help move the belongings.

She did not know whether her services would be needed to load and unload the car because she had not seen the belongings, but she figured her assistance would be needed because respondent had asked her. In her words, 'I thought I was going to help.' She denied she was just along for the ride and companionship and stated, 'Some people move and you usually help them * * *. It is quicker that way.' She affirmed the following statement of respondent's counsel 'Well, to sum up, it is your testimony that you went over there to help him move primarily * * *.'

Respondent testified that on the evening in question, after dinner when he was ready to leave the house, he had a conversation with appellant. The record reflects: 'Q. Well, you had a conversation with Miss Neuser where you asked her to accompany you and help with the moving, is that true? A. That is when I was leaving the house then. Q. All right. And you were ready to leave. Then did you turn to Miss Neuser? A. Yes. Q. * * *. Did you turn to her and ask her to please come along and help you move Mr. Carson? A. I did to that effect. I did, to that effect. Q. Do you recall having made that statement? A. Yes. THE COURT: Just what did you say to her? THE WITNESS: Well, I can't remember exactly what I [did] say, but I did ask her to go down, because I was going down to help Mr. Carson to move, and I asked her if she would come down and help.' He stated that there was no discussion about what was going to be moved, that he could recall no conversation about a bed or other than the request to come and help with the move, and that he could not recall what appellant replied to his request.

In response to inquiries about his intention to have appellant help in the move if needed, respondent reiterated that he did not know and could not recall the exact words he used; and stated that he supposed he expected her to help if she came along, and, 'I don't know what the true intention was, you see.' He further testified that it was true that the words he used were that he wanted her to help move Carson; that he did tell her he did not intend her to help; and that he would have gone by himself if she had not accompanied him.

Further evidence reflects that respondent and Collasto were sharing expenses and that it was anticipated that Carson on moving in would contribute his share. There is nothing to show that this information was communicated to appellant.

Generally it is for the trier of fact to determine whether or not a person riding in another car is a 'guest,' and the question, inherent in that inquiry, whether or not compensation was given for the ride. (Martinez v. Southern Pacific Co. (1955) 45 Cal.2d 244, 250, 288 P.2d 868; Stephan v. Proctor (1965) 235 A.C.A. 261, 265, 45 Cal.Rptr. 124; Nault v. Smith (1961) 194 Cal.App.2d 257, 266, 14 Cal.Rptr. 889; Clapp v. Hester (1959) 169 Cal.App.2d 558, 560, 337 P.2d 525; Shapiro v. Bookspan (1957) 155 Cal.App.2d 353, 358, 318 P.2d 123; Gosselin v. Hawkins (1950) 95 Cal.App.2d 857, 861, 214 P.2d 110.) On the other hand, if the admitted facts give rise to but one reasonable conclusion the question of whether or not compensation was given for the ride and the resulting status of the rider is one of law. (Whitmore v. French (1951) 37 Cal.2d 744, 746-747, 235 P.2d 3; Clapp v. Hester, supra, 169 Cal.App.2d 558, 560, 337 P.2d 525; Ray v. Hanisch (1957) 147 Cal.App.2d 742, 750, 306 P.2d 30.)

Where the evidence reflects that the rider was a 'guest' as a matter of law, it is proper to grant a nonsuit in the absense of proof of intoxication or wilful misconduct. (McCann v. Hoffman (1937) 9 Cal.2d 279, 285-287, 70 P.2d 909; Stephan v. Proctor, supra, 235 A.C.A. 261, 264-265, 45 Cal.Rptr. 124; Nault v. Smith, supra, 194 Cal.App.2d 257, 261-264, 14 Cal.Rptr. 889; Brandis v. Goldanski (1953) 117 Cal.App.2d 42, 44-49, 255 P.2d 36; see also: Ray v. Hanisch, supra, 147 Cal.App.2d 742, 748-750, 306 P.2d 30; Lyon v. City of Long Beach (1949) 92 Cal.App.2d 472, 474-479, 207 P.2d 73; Bummer v. Liberty Laundry Co. (1941) 48 Cal.App.2d 648, 649-650, 120 P.2d 672; Stephen v. Spaulding (1939) 32 Cal.App.2d 326, 328-329, 89 P.2d 683; and Rogers v. Vreeland (1936) 16 Cal.App.2d 364, 365-370, 60 P.2d 585.) Conversely it is error to grant a nonsuit if there is evidence sufficient to sustain a finding that the rider was other than a 'guest.' (Thompson v. Lacey (1954) 42 Cal.2d 443, 267 P.2d 1; Kruzie v. Sanders (1943) 23 Cal.2d 237, 241-243, 143 P.2d 704; Schramko v. Saulter (1956) 146 Cal.App.2d 549, 551-552, 303 P.2d 1061; Carey v. City of O'akland (1961) 44 Cal.App.2d 503, 507-510, 112 P.2d 714; Darling v. Dreamland Bedding & Upholstering Co. (1941) 44 Cal.App.2d 253, 255-258, 112 P.2d 338; and see Druzanich v. Criley (1942) 19 Cal.2d 439, 443-444, 122 P.2d 53.)

Appellant urges that the evidence demonstrates that she was a 'passenger' or rider giving compensation as a matter of law. (See Tucker v. Landucci (1962) 57 Cal.2d 762, 766, 22 Cal.Rptr. 10, 371 P.2d 754; Gillespie v. Rawlings (1957) 49 Cal.2d 359, 366 and 369, 317 P.2d 601; Whitmore v. French, supra, 37 Cal.2d 747, 746-747, 235 P.2d 3; Druzanich v. Criley, supra, 19 Cal.2d 439, 443-444, 122 P.2d 53; Clapp v. Hester, supra, 169 Cal.App.2d 558, 562, 337 P.2d 525.) She in effect urges that the trip was one involving the business of respondent, that is, to secure a further roommate who would contribute to the expenses of the apartment which he then shared with Collasto; and that the assistance he was to receive from the appellant was a substantial motivating influence for furnishing her the ride. This analysis overlooks the possible inference that the services were to be rendered to Carson, not respondent driver. The fact that the latter might benefit economically was not discussed or made a consideration for the request that appellant go on the trip or her assent thereto. (See Nault v. Smith, supra, 194 Cal.App.2d 257, 265-266, 14 Cal.Rptr. 889.) It further appears that respondent admitted he would have made the trip on his own in any event. It would be cavalier and presumptuous to hold as a matter of law that under the circumstances of this case the driver was motivated by the hope of benefiting from the brawn of his companion of the fair sex rather than from the pleasure of her company. (See Comment, 2 BAJI, pp. 677-678.) In fact if, as may properly be inferred from the evidence, both parties were interested in the single objective of assisting Carson, that fact alone would not control appellant's status and make her other than a guest. (Druzanich v. Criley, supra, 19 Cal.2d 439, 442-443, 122 P.2d 53; Whitechat v. Guyette (1942) 19 Cal.2d 428, 433, 122 P.2d 47; Bowman v. Collins (1960) 181 Cal.App.2d 807, 813-815, 5 Cal.Rptr. 776; Benjamin v. Rutherford (1956) 146 Cal.App.2d 561, 565, 303 P.2d 1079; ...