Provost v. Worrall
| Decision Date | 19 June 1956 |
| Citation | 298 P.2d 726,142 Cal.App.2d 367 |
| Parties | Dolores Irene PROVOST and George Francis Provost, Plaintiffs and Respondents, v. Richard Owen WORRALL, Defendant and Appellant. Civ. 16711. |
| Court | California Court of Appeals Court of Appeals |
James P. Shovlin, Jr., San Francisco, for appellant.
Philander Brooks Beadle, San Francisco, Abraham Setzer, San Francisco, for respondents.
Defendant appeals from a judgment on jury verdicts granting plaintiff Dolores $2,000 and plaintiff George $250 and from the order granting new trial on damages alone.
Questions Presented.
1. Were plaintiffs under Washington law guests or passengers for pay in defendant's car?
2. Was contributory negligence an issue?
3. Alleged errors in exclusion of defendant's reason for trip.
4. Was new trial on issue of damages only an abuse of discretion?
Facts.
Plaintiff George and defendant were both on active duty in the U. S. Marine Corps and were stationed at Bremerton, Washington, sleeping in the same room at the barracks. They had served together in the same company in Korea, sharing the same tent when in the rear areas. They had returned together on the same ship. Plaintiffs Dolores and George planned to get married at Bremerton on October 18th. Plaintiff George asked defendant to be best man at the wedding. On October 17th plaintiffs discovered that they could not marry the next day, as Washington had a three-day waiting law and they had neglected to obtain a license. Meeting defendant that evening, they discussed their predicament with him. The suggestion was made that plaintiffs could get married in Idaho without a waiting period. There is a conflict as to whether one of the plaintiffs or the defendant made the suggestion. Defendant owned an automobile. Plaintiffs did not. Defendant had only $7 or $8 at the time. It was agreed that if plaintiffs would pay the expenses or part of the expenses, defendant would drive them to Idaho. Defendant previously had not been to Idaho. He had no friends or relatives there and had not planned on going there. 'I said that I * * * would take them considering that we were good friends and had known each other for quite some time.' Plaintiff George paid the expenses of the trip such as gas and oil, food, and bridge toll.
The trip started from Bremerton by ferry about 11:55 p. m. Defendant's car then contained about a full tank of gasoline for which he received no reimbursement. Arriving at Seattle, defendant drove the car some 65 miles to Easton, Washington. There plaintiff George took over the driving, while defendant slept. About 6:30 a. m. they reached Ritzville, Washington. Here the party had breakfast. Between 7:15 and 7:30 a. m. they left Ritzville, defendant driving. Both plaintiffs went to sleep. About 45 minutes later, while still in Washington, the car ran off the road and overturned. Plaintiff George woke up as the car was running off the road. Defendant 'seemed to be grappling with the wheel as if he was trying to bring it under control * * *.' Defendant was unable to give any explanation for the accident. Although he did not feel sleepy he did not know whether or not he fell asleep. There was a possibility that defendant may have suffered retrograde amnesia as a result of the accident. The evidence was conflicting as to whether the car was being driven 60-70 or 45-50 miles an hour at the time of the accident.
Although this action was filed in the San Francisco Superior Court, it is governed by the laws of Washington, the jurisdiction where the tort, if any, was committed. See Loranger v. Nadeau, 215 Cal. 362, 366, 10 P.2d 63, 84 A.L.R. 1264. Matters of procedure, however, are governed by the laws of the forum. Klaffki v. Kaufman, 52 Cal.App.2d 48, 50, 198 P. 36. Defendant moved for a nonsuit which was denied. He also moved for a new trial. His motion was denied. The court, however, granted plaintiff's motion for new trial on damages alone.
Defendant contends that as a matter of law under the Washington statute plaintiffs were guests and not passengers and hence the nonsuit and his motion for new trial should have been granted.
The Washington 'guest statute' reads as follows:
The Washington courts have upheld the validity of this statute, and have stated its purpose to be the prevention of collusive suits to defraud a defendant's insurance carrier. Shea v. Olson, 1936, 185 Wash. 143, 53 P.2d 615, 620, 111 A.L.R. 998; Upchurch v. Hubbard, 1947, 29 Wash.2d 559, 188 P.2d 82, 86.
Interpretation of the statute is the major problem, and it focuses upon the meaning of the word 'payment,' because the presence or lack of payment determines whether a person riding in the automobile of another falls into the category of a 'guest or licensee' or otherwise.
No Washington cases have been cited, nor have we found any, with facts substantially similar to this case. The interpretation of the statute must therefore bemade upon a basis of how it is believed, from a reading of the existing Washington cases, the Washington court would interpret it.
Generally, the Washington cases hold that in order to show "payment for such transportation" two requirements are necessary: (1) an actual or potential benefit in a material or business sense resulting or to result to the owner, and (2) '* * * that the transportation * * * [be] motivated by the expectation of such benefit.' Fuller v. Tucker, 4 Wash.2d 426, 103 P.2d 1086, 1088. The expectation of receiving such benefit need not be the sole motivating factor. McUne v. Fuqua, 42 Wash.2d 65, 253 P.2d 632. 1
A review of the Washington cases shows that primarily the determination of whether the invitee in an automobile who contributes towards its operation is considered a guest 'without payment' is a matter for the jury's determination. See Parrish v. Ash, 32 Wash.2d 637, 203 P.2d 330, where the plaintiff who requested to ride home with the defendant, paid the defendant a dime for the ride. In upholding the jury's finding that this was 'payment' the court said in 203 P.2d at page 338: 'It is for the jury to determine, from the evidence and upon proper instructions by the court, whether an amount paid, an article of property furnished, or a thing done was intended by the parties concerned as compensation for the transportation * * * or whether on the contrary the consideration or benefit was proffered and accepted merely as a gratuity or expression of appreciation for a favor extended.' See also McUne v. Fuqua, supra, 253 P.2d 632, at page 636, where the court said: '* * * where it has been shown that the passenger contributed, or promised to contribute, to the actual expenses of the trip, then, notwithstanding the fact that the trip was solely for social purposes, we have held that it is for the trier of the facts to find whether such contribution constitutes an actual or potential benefit in a material or business sense.' 2
Applying the Washington rule to the fact of this case it is clear that it cannot be said as a matter of law that defendant was to receive 'payment for such transportation' in the sense required. The jury could have found either that the trip was purely a social one in which defendant through friendship offered to help his friend out of a predicament by supplying transportation, but because of lack of finances required the cost of the trip to be borne by the latter, or one in which a substantial motive was a trip for himself to a place he had never seen financed by the other. 3 The court properly left to the jury the question of the motivation for the trip.
Defendant contends that because plaintiffs planned a trip of some 600-700 miles to be completed in less than 24 hours, driving all night and all day, and were asleep at or immediately prior to the time of the accident, there was evidence of contributory negligence to go to the jury. Towards the end of the trial defendant moved for permission to file a supplementary answer on contributory negligence to conform to the proof (contributory negligence had not theretofore been pleaded). The court granted permission, expressly reserving the right to determine before instructing on the subject whether there was any evidence of such negligence. No supplementary answer was filed. The court refused to give defendant's offered instructions on the subject, but instructed that there was no issue of contributory negligence in the case. Upon motion for new trial defendant requested permission to file the amendment in accordance with the previous order. This was denied. It is well settled that contributory negligence to be an issue must be pleaded. Rhodes v. Amor, 119 Cal.App.2d 98, 101, 259 P.2d 35. It is waived unless pleaded. Greene v. M. & S. Lumber Co., 108 Cal.App.2d 6, 10, 238 P.2d 87.
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