Sand v. Mahnan

• Decision Date: 20 February 1967
• Citation: 56 Cal.Rptr. 691,248 Cal.App.2d 679
• Court: California Court of Appeals Court of Appeals
• Parties: Dolores A. SAND, Plaintiff and Appellant v. Mary Lou MAHNAN, Defendant and Respondent. Civ. 8254.

Page 691

56 Cal.Rptr. 691

248 Cal.App.2d 679

Dolores A. SAND, Plaintiff and Appellant v. Mary Lou MAHNAN, Defendant and Respondent.

Civ. 8254.

Court of Appeal, Fourth District, Division 2, California.

Feb. 20, 1967.

Hearing Denied April 19, 1967.

[248 Cal.App.2d 681] William A. Dougherty, Santa Ana, for plaintiff and appellant.

Flaum & Sheehy, by Patrick F. Sheehy, and Henry F. Walker, Los Angeles, for defendant and respondent.

OPINION

KERRIGAN, Associate Justice.

In the early evening of Friday, March 29, 1963, defendant telephoned plaintiff and requested that plaintiff accompany her to Los Angeles from Santa Ana. Defendant was 24 years of age and had known plaintiff socially for a period of approximately two months. Plaintiff was a licensed driver while defendant only possessed a learner's permit. Defendant required the presence of a licensed driver to lawfully operate her car, and the purpose of the trip was to pick up a young child who was a relative of the defendant. Plaintiff had ridden with defendant on previous occasions inasmuch as the two young ladies had visited various beach cities during their brief social relationship, and because of their friendship, obviously enjoyed being in each other's company.

Shortly after the telephone conversation, defendant arrived at plaintiff's residence accompanied by her mother. Defendant drove the Corvair, plaintiff rode in the right front seat, and defendant's mother, who did not know how to operate a motor vehicle, sat in the right rear seat.

The three ladies departed from Santa Ana for Los Angeles between 6:45--7:00 p.m. and were proceeding north on the Santa Ana Freeway when the accident occurred between 7:20--7:30 p.m. Darkness had descended, vehicle lights were on, and the traffic flow, which was initially 'moderate' in the three northbound lanes, eventually became 'heavy.'

Defendant drove primarily in the middle lane and the speed of defendant's vehicle varied between 55--70 m.p.h. Defendant changed lanes frequently, proceeding into the left 'fast' lane and then back to the middle lane in order to pass other cars.

Plaintiff was aware that defendant possessed only a learner's permit, was taking driving lessons at a college, had not previously driven on a freeway, and was cognizant of the speed at which the Corvair was traveling in moderate to heavy traffic, but never directed nor advised defendant, choosing to remain silent as to the manner in which defendant was operating the car. Immediately prior to the accident, plaintiff reached down to the floorboard, removed a cigarette from her purse, and as she resumed her normal sitting position, observed that they were practically on top of a vehicle in front of them in the middle lane. Defendant applied the brakes, swerved to the left, missed the car in the middle lane, struck the divider and ricocheted off the divider into another car in the 'fast' lane. Plaintiff and defendant's mother sustained injuries in the collision, and plaintiff initiated this action on the theory of negligence for recovery of damages. Willful misconduct and intoxication were not in issue.

Following a jury trial, a verdict was handed down in favor of defendant, and plaintiff appeals from the judgment resulting therefrom.

Plaintiff maintains (1) plaintiff was a passenger as a matter of law and the court should have so instructed the jury rather than permitting the jury to determine plaintiff's status as a passenger or guest; (2) erroneous refusal of the court to give certain of plaintiff's instructions relating to guest-passenger status; (3) instructions on doctrines of assumption of risk and contributory negligence were improper because of insufficiency of the evidence to justify such instructions; (4) refusal to give Res ipsa loquitur instruction constituted error; and (5) improper argument by defense counsel.

Section 17158 of the Vehicle Code provides in pertinent part that 'No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride * * * has any right of action for civil damages against the driver of the vehicle * * * on account of personal injury to * * * the guest during the ride, unless the plaintiff * * * establishes that the injury * * * proximately resulted from the intoxication or willful misconduct of the driver.' The primary policy underlying the guest statute is to prevent recovery for ordinary negligence by a guest who has accepted the hospitality of the owner (Martinez v. Southern Pacific Co., 45 Cal.2d 244, 253, 288 P.2d 868; Kruzie v. Sanders, 23 Cal.2d 237, 242, 143 P.2d 704; Bowman v. Collins, 181 Cal.App.2d 807, 814, 5 Cal.Rptr. 776); a secondary policy is to prevent collusive suits between friends where the driver admits negligence in order to shift the burden to his insurance carrier. (Stephan v. Proctor, 235 Cal.App.2d 228, 230, 45 Cal.Rptr. 124; 26 Cal.L.Rev. 251, 252.) The benefit to the driver must be something more than simply the pleasure of the rider's company; the mere extension of customary courtesies of the road does not destroy the host and guest relationship, if nothing more is involved than the exchange of social amenities or reciprocal hospitality. (Ray v. Hanisch, 147 Cal.App.2d 742, 749, 306 P.2d 30; Stephan v. Proctor, supra; Martinez v. Southern Pacific Co., supra, 45 Cal.2d 244, 250--251, 288 P.2d 868.) However, the tangible benefit need not be monetary (Clapp v. Hester, 169 Cal.App.2d 558, 559, 337 P.2d 525), but in order to constitute a tangible benefit, there must be a return which makes it worth the driver's while to furnish the ride. (Crawford v. Foster, 110 Cal.App. 81, 84, 293 P. 841.) The tangible benefit, not mere pleasure, kindness or friendship, must be the principal inducement for the ride to constitute compensation. (Tucker v. Landucci, 57 Cal.2d 762, 766, 22 Cal.Rptr. 10, 371 P.2d 754; Gillespie v. Rawlings, 49 Cal.2d 359, 364, 317 P.2d 601.) Normally, it is a factual issue whether the principal inducement for a ride is friendship, kindness, pleasure, or a bargained-for ride. (Baker v. Novak, 144 Cal.App.2d 514, 518, 301 P.2d 257; Stephan v. Proctor, supra, 235 Cal.App.2d 228, 231, 45 Cal.Rptr. 124.) It is specifically a factual issue for the trier-of-fact's determination when the rider and driver are friends, the driver has only a learner's permit, the rider is a licensed driver, and the evidence is conflicting as to the primary inducement for the ride. (Roberts v. Craig, 124 Cal.App.2d 202, 211, 268 P.2d 500, 43 A.L.R.2d 1146.)

Plaintiff has taken the position that as a matter of law her status was that of a passenger for compensation and not that of a guest in the vehicle. However, there is credible evidence in the record to the effect genuine friendship existed between the driver and plaintiff, and the principal or motivating influence for plaintiff accompanying defendant was based on the social factor. Furthermore, plaintiff testified that she would have accompanied plaintiff to Los Angeles in the event defendant had been a duly licensed driver and, consequently, the motivating influence for the ride was clearly based on social considerations. Plaintiff was certainly not a passenger for monetary compensation and the law is clear that where the main or motivating influence for accompanying the owner is predicated on a social or friendship relationship, the rider is not a passenger as a matter of law. (See Winn v. Ferguson, 132 Cal.App.2d 539, 543, 282 P.2d 515; Stephan v. Proctor, supra, 235 Cal.App.2d 228, 231--232, 45 Cal.Rptr. 124.) Even where expenses of the trip are shared on a purely social or pleasure trip, the main purpose of the trip being the Joint pleasure of the participants, the rider is not a passenger but a guest. (See McCann v. Hoffman, 9 Cal.2d 279, 285, 70 P.2d 909.) The words contained in the statute 'giving compensation for such ride' signify the giving of some 'tangible benefit' to the person who furnished the ride, such benefit being the motivating influence for supplying the transportation. (Nault v. Smith, 194 Cal.app.2d 257, 262, 14 Cal.Rptr. 889.) The court was fully justified in submitting the issue as to plaintiff's status to the jury for the purpose of determining the principal inducement for the ride. (See Roberts v. Craig, supra, 124 Cal.App.2d 202, 211, 268 P.2d 500, 43 A.L.R.2d 1146; Baker v. Novak, supra, 144 Cal.app.2d 514, 518, 301 P.2d 257; Stephan v. Proctor, supra, 235 Cal.App.2d 228, 231, 45 Cal.Rptr. 124.)

It should be further noted that the plaintiff herself requested the giving of the instruction commonly designated as BAJI 209, the substance of which submits the issue of the passenger-guest status to the jury for its determination as a question of fact, and therefore plaintiff is in no position to complain because she, herself, in the trial court, took the position that it was a question of fact for the jury's determination as reflected by her submission of the proposed instruction on the subject. (See Brown v. Kiely, 126 Cal.App.2d 191, 193, 271 P.2d 928.)

Plaintiff next asserts error in the refusal of the court to give certain instructions, the first of which is the following: 'As the guest statute is in derogation of common law, it must be strictly construed against the driver.' (Prager v. Isreal, 15 Cal.2d 89, 93, 98 P.2d 729.) However, the guest statute must be interpreted in accordance with the intent of the Legislature, and the primary policy underlying the statute is to prevent recovery for ordinary negligence by a guest in an automobile who has accepted the hospitality of the owner or driver. (Martinez v. Southern Pacific Co., supra, 45 Cal.2d 244, 253, 288 P.2d 868.) Furthermore, the interpretation or construction of a statute is one of law for determination by the court and is not a question of fact for determination by the jury. (Evid.Code, § 310; Estate of Madison, 26 Cal.2d 453, 456--457, 159 P.2d 630; County of Monterey v. Madolora, 171...