Rabago v. Meraz

• Decision Date: 02 July 1963
• Citation: 383 P.2d 129,60 Cal.2d 55,31 Cal.Rptr. 777
• Court: California Supreme Court
• Parties: , 383 P.2d 129 Anita RABAGO, Plaintiff and Appellant, v. Luis Reynoso MERAZ, Defendant and Respondent. L. A. 27130.

Page 777

31 Cal.Rptr. 777

60 Cal.2d 55, 383 P.2d 129

Anita RABAGO, Plaintiff and Appellant, v. Luis Reynoso MERAZ, Defendant and Respondent.

L. A. 27130.

Supreme Court of California, In Bank.

July 2, 1963.

Zacsek & Schwimmer and Jacque Boyle, Los Angeles, for plaintiff and appellant.

Spray, Gould & Bowers and Daniel O. Howard, Los Angeles, for defendant and respondent.

PETERS, Justice.

Plaintiff appeals from a judgment, based upon a jury verdict, in favor of defendant in an action for damages for injuries suffered by plaintiff when defendant drove his automobile, in which plaintiff was riding, into a parked vehicle. As the main ground for reversal she contends that the trial court erred in its instructions. We are of the opinion that, for the reasons set forth below, the jury was erroneously instructed, and that the judgment must be reversed.

The principal questions presented revolve around plaintiff's status at the moment of the accident. To assess properly these problems reference will be made to the pleadings, the evidence, and the jury charge.

In her first cause of action plaintiff alleged that she was a guest in defendant's car, that defendant was intoxicated, and that his condition of insobriety was the proximate cause of the accident. In her second cause of action she simply alleged that she was a passenger, and was injured as a proximate result of defendant's negligence. The answer pleaded a general denial, contributory negligence, and assumption of risk. In a joint pretrial statement the issues were limited to (a) 'Whether plaintiff was a guest or passenger,' (b) defendant's intoxication and negligence, and (c) plaintiff's contributory negligence and assumption of risk. The pretrial order adopted the issues as stated by the parties in their joint statement, but for some unknown reason that document referred to the second cause of action as alleging that plaintiff was 'a passenger for hire.' The words 'for hire' do not appear in the complaint, answer or joint pretrial statement. It must be assumed that the two words were inserted by the pretrial judge either by inadvertence or in the erroneous belief that the law recognizes only two categories of a nondriving occupant in a car guest or passenger for hire. At any rate, the parties subsequently entered into a stipulation that the pretrial order be amended 'to add to the defendant's contentions a denial * * * that the plaintiff was a passenger for hire.'

The evidence produced at the trial indicated, without dispute, that plaintiff and defendant met at a dance hall where they consumed several drinks, that they then bought a bottle of whiskey, and set out in defendant's car for a party to which they had been invited, together with several companions. Defendant drove, and plaintiff sat next to him, with one companion on her right and the others in the rear seat. The car collided with a parked vehicle, causing the injuries of which complaint is made. In addition to these undisputed facts, evidence was offered from which the jury could have found any of the following facts to be true: (1) that plaintiff asked defendant not to drive so fast, and defendant told her not to worry and that nothing would happen; (2) that defendant continued to drive at an excessive speed, and shortly before the collision occurred plaintiff requested that he stop the automobile and permit her to get out, but defendant failed or refused to stop; (3) that while the car was in motion plaintiff placed her arms around defendant's neck and kissed him; (4) that defendant did not appear to be intoxicated at the moment the parties first entered his automobile.

It should be noted that plaintiff offered no evidence in support of the purported allegation that she was a passenger for hire.

In its charge to the jury the trial court refused to instruct on the responsibilities of a driver of a car toward an involuntary occupant. At defendant's request, it did instruct on the responsibilities of a driver toward a passenger for hire, and it instructed on the doctrine of assumption of risk. But it refused to give two instructions, requested by plaintiff, to the effect that when a person accepts an invitation to ride in another's automobile but thereafter over her objections becomes an involuntary occupant of such vehicle, she ceases to be a guest and becomes a passenger.

The basic issue here involved is whether or not, in view of the pleadings and evidence, plaintiff was entitled to have the jury pass upon the question of whether she was an involuntary passenger. This, in turn, depends upon whether the word 'passenger' as pleaded, and as her evidence showed, includes an involuntary occupant of an automobile.

It is defendant's contention (and evidently the theory of the trial court) that plaintiff was not entitled to have the jury instructed on any theory involving the possibility that she was an involuntary occupant of the car. It is claimed that an 'involuntary occupant' is not included within the definition of either 'guest' or 'passenger,' the two categories in which plaintiff placed herself by her pleadings. In other words, the claim is that the allegations of the second cause of action, wherein plaintiff alleged that she was a 'passenger' at the moment of the accident, are insufficient to create an issue regarding plaintiff's status other than as a 'passenger for hire.' To sustain this novel theory defendant cites Follansbee v. Benzenberg, 122 Cal.App.2d 466, 471, 265 P.2d 183, 42 A.L.R.2d 832; Ray v. Hanisch, 147 Cal.App.2d 742, 746, 306 P.2d 30; and Shapiro v. Bookspan, 155 Cal.App.2d 353, 357, 318 P.2d 123. Follansbee (as well as Shapiro, which relies on Follansbee) states that 'A passenger is one who gives compensation for a ride.' Ray uses slightly different language, holding that 'The terms 'passenger' and 'guest' have been adopted for the purpose of distinguishing a person who has given compensation within the meaning of section 403 (now Veh.Code, § 17158) from one carried gratuitously.' Other cases not cited by defendant could be referred to as containing similar language. ¹ From this language it is argued that the word 'passenger' means only a 'passenger for hire,' and does not include an 'involuntary passenger.' The cited cases stand for no such definition. Each of them dealt solely with the distinction between a gratuitous guest and an occupant who it was claimed gave consideration for his passage. They did not intend to give an all-inclusive definition of the word 'passenger.' They did not consider, because the problem was not involved, whether the word 'passenger' could include anyone who did not pay for his ride. There was neither need nor intent to limit the definition of 'passenger' other than to distinguish it from 'guest.'

In at least one case, and in the cases cited therein, it has been held that an occupant of a vehicle may possess a status different from 'a guest' or 'a passenger for hire' (Rocha v. Hulen, 6 Cal.App.2d 245, 44 P.2d 478), but the case did not find it necessary to indicate the name of such an occupant. No case has been found that directly holds that one who voluntarily enters a motor vehicle as a guest, but who then becomes an involuntary occupant by reason of a refused request to leave, comes within the category of 'passenger,' but if the term be given its usual ordinary meaning that result would seem to follow.

The standard law dictionaries (Bouvier and Black), strangely enough, treat as a 'passenger' only one who travels on a public conveyance. Such confining treatment of the word is of no aid herein, since if the definition were to be so limited the word could not be used in the sense contended for by either party. The general dictionaries are more enlightening. They include within the meaning of 'passenger' all types of persons who travel in a conveyance. Webster's New World Dictionary of the American Language, Encyclopedia Edition (1951) defines the word (insofar as our purposes here are concerned) as 'a person traveling in a train, bus, boat, etc., especially a person having no part in the operation of the conveyance: often distinguished from driver, crew member, etc.' Such definition, of course, would include all persons riding in defendant's car, other than defendant himself, whether guest, passenger for hire, or involuntary occupant. More clarity is found in Webster's Third New International Dictionary (1961) which (in addition to several definitions with which we are not concerned) contains the following: '2a: a traveler in a public conveyance (as a train, bus, airplane or ship) * * * b: one who is carried in a private conveyance (as an automobile) for compensation or expected benefit to the owner c: a rider in an automobile (a six-passenger model). * * *' Certainly, from these definitions, an involuntary occupant comes within the general meaning of the term 'passenger.' It thus follows, that when plaintiff alleged (in her second cause of action) that she was a passenger in defendant's automobile, she merely stated that she was an occupant of the vehicle other than the driver. She may have meant that she was a guest, a passenger for hire, or an involuntary occupant. Since her first cause of action is based upon her alleged status as a guest, it is obvious that her use of the word 'passenger' in the second cause of action was not intended to embrace that status. The word may thus be taken to have meant any form of occupant other than a guest.

Plaintiff's pleading may have been ambiguous in this respect, and so subject to a special demurrer. ² But the record does not indicate that such a demurrer was filed. The defendant was apparently willing to accept the pleading at its face value. In addition, defendant entered into a joint pretrial statement in which he agreed that the principal issue in the case was 'Whether plaintiff was a guest or passenger in * * * (the) automobile at the time of * * * (the) collision.' Although h...