Ray v. Hanisch
| Decision Date | 22 January 1957 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Shirley RAY, Plaintiff and Appellant, v. Marion J. HANISCH, Defendant and Respondent. Civ. 21821. |
Rothman, Goodman & Hirschberg and Louis N. Wolf, Los Angeles, for appellant.
Jarrett & Morgan and Joseph W. Jarrett, Los Angeles, for respondent.
Appeal from a judgment of dismissal in an action for damages for personal injuries.
The complaint is in two counts. The first alleges that on July 11, 1954, while defendant was driving an automobile owned by plaintiff in which she (plaintiff) was riding, defendant negligently drove the automobile into a ditch, resulting in injuries to plaintiff. The second count realleges these facts; and that three days before the accident plaintiff and defendant agreed to take a vacation for pleasure in plaintiff's automobile under a definite oral agreement whereby they would 'share the travel expenses entailed by the said trip,' and that plaintiff would not have 'consented to' or 'undertaken' the trip 'if she did not have such an agreement with the defendant.' A general demurrer to both counts was sustained with leave. Plaintiff declined to amend and she appeals from the judgment which ensued.
The parties, by agreement, supplement the complaint with these additional facts: 'Mrs. Hanisch [defendant] when visiting in Los Angeles contacted Mrs. Ray [plaintiff], her old friend, and the former accepted the hospitality of Mrs. Ray to drive Mrs. Hanisch to Palm Springs to show her the sights and on one stretch of the road Mrs. Hanisch voluntarily and without pre-arrangement had temporarily taken over the driving when the unfortunate accident occurred in leaving the highway while negotiating a curve in the road.'
Vehicle Code, section 403, commonly called the 'guest law,' reads:
'No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of such vehicle or against any other person legally liable for the conduct of such driver on account of personal injury to or the death of such guest during such ride, unless the plaintiff in any such action establishes that such injury or death proximately resulted from the intoxication or wilful misconduct of said driver.'
Section 403 is limited to guests. Fernandez v. Consolidated Fisheries, Inc., 98 Cal.App.2d 91, 98, 219 P.2d 73. Since plaintiff does not allege her injuries resulted from the intoxication or wilful misconduct of defendant, the conditions for the exemption from liability granted by the statute applicable here are: 1. A guest shall accept a ride in any vehicle upon a highway. 2. No compensation must be given for such ride.
No fact is alleged in the first count from which an inference can be drawn that plaintiff was a guest, unless the fact follows from the averment that she was the owner of the car. The question therefore is: Do the facts alleged in the first count show that plaintiff was a guest? Whether an owner riding in a vehicle driven by another is a guest, is one of first impression in this state.
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 from one carried gratuitously. Martinez v. Southern Pacific Co., 45 Cal.2d 244, 249-250, 288 P.2d 868. If one is a passenger, the driver is liable for ordinary negligence causing the injuries or death. Follansbee v. Benzenberg, 122 Cal.App.2d 466, 470, 265 P.2d 183, 42 A.L.R.2d 832.
The guest statute of Connecticut read:
'No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.'
Conn.Gen.Stat.1930, § 1628. Gledhill v. Connecticut Co., 121 Conn. 102, 183 A. 379, was an action by the administratrix of the estate of Gledhill against Graham. Graham, while on vacation, was visiting with Gledhill. They went on a fishing trip in an automobile owned by Gledhill in which he was seated upon the front seat. Graham was driving at the request of Gledhill. Graham negligently drove the car into a pole on the side of the road, causing injuries to Gledhill from which the latter died. There was no claim that there was any intentional misconduct on the part of Graham, or that the accident was caused by his heedlessness or his reckless disregard of the rights of others. The court refused to charge the jury that Gledhill was a guest in the automobile. A verdict was returned in favor of the plaintiff against Graham. The Supreme Court of Errors of Connecticut held, 183 A. 380 'As used in the statute the term [guest] imports that the person riding in a motor vehicle is a recipient of the hospitality of the owner or driver. * * *
Anderson v. Burkardt, 275 N.Y. 281, 9 N.E.2d 929, says the so-called 'guest rule' does not apply 'to the owner two is being driven in his own car; he is no guest.'
A Virginia 'guest law' read:
'No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation * * * shall be entitled to recover damages against such owner or operator for * * * injuries to the person * * * of such guest resulting from the operation of such motor vehicle, unless such * * * injury was caused or resulted from the gross negligence or willful and wanton disregard of the safety of the person * * * being so transported on the part of such owner or operator.'
Code 1950 Va. § 8-646.1. The Supreme Court of Pennsylvania, construing the Virginia statute and answering the contention that the plaintiff who was riding in his own car could not recover from his driver friend without proof the driver was grossly negligent or guilty of a wilful and wanton disregard of the plaintiff's safety, in Lorch v. Eglin, 369 Pa. 314, 85 A.2d 841, at page 843, concluded:
'The reason, however, why this contention is without merit is that Lorch [the plaintiff owner] was not a guest in the car. He was riding in his own automobile, and, while apparently there is no direct decision of a Virginia court covering such a situation, there can be no doubt as to the proper judicial interpretation of the statute applicable to the present circumstances. It was said in our own case of Beam v. Pittsburgh Rys. Co., 366 Pa. 360, 372, 77 A.2d 634, 640: 'It would be flying in the face of all the authorities to hold that merely by allowing Shook [the friend of the owner] to drive the car Beam [the owner] made him a bailee of the automobile and completely abnegated his right of control over the operation of his own car. Plaintiff's statement of claim alleged that Beam was a 'guest passenger,' but there is not a word of testimony to indicate that Beam had relegated himself to the status of a 'guest' in his own automobile and had actually bailed or turned over to Shook the car and the exclusive charge and control thereof.''
There is an inference, in the absence of evidence to the contrary, that an owner present in his car has power to control it. And in the absence of such contrary evidence, an owner allowing a friend to drive his car has the right to govern the manner of its operation, as well as at any time to terminate the permission given and to operate the car himself. Grover v. Sharp & Fellows Contracting Co., 66 Cal.App.2d 736, 741, 153 P.2d 83; Haigh v. Hill, 65 Cal.App. 517, 520, 224 P. 474; Beam v. Pittsburgh Rys. Co., 366 Pa. 360, 77 A.2d 634, 639.
The primary policy underlying the guest law is to prevent recovery for ordinary negligence by a guest in a vehicle who has accepted the hospitality of the owner. Kruzie v. Sanders, 23 Cal.2d 237, 242, 143 P.2d 704. We think the reasoning of the Gledhill and Lorch cases is logical and unanswerable.
We conclude that the mere fact plaintiff was riding in her own car while it was driven by defendant, her friend, does not classify her as a guest within the meaning of section 403; and that the first count, standing alone, states facts sufficient to constitute a cause of action for ordinary negligence.
The sufficiency of the second count depends on whether plaintiff gave compensation for the ride. Whether an occupant of a vehicle is a guest or a passenger depends on the answer to the query: Did he or someone in his behalf give 'compensation for such ride' within the meaning of section 403? Whitechat v. Guyette, 19 Cal.2d 428, 430, 122 P.2d 47. If an occupant gives compensation for the ride he is a passenger.
Where the driver receives a tangible benefit, monetary or otherwise, which is a motivating influence for furnishing the...
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...the owner-passenger had given 'compensation.' (Ahlgren v. Ahlgren (1957) 152 Cal.App.2d 723, 313 P.2d 88; Ray v. Hanisch (1957) 147 Cal.App.2d 742, 306 P.2d 30; see also Note (1958) 32 So.Cal.L.Rev. 93; Note (1957) 4 U.C.L.A.L.Rev. 652.) The Legislature, apparently concluding that the prese......
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