Schramko v. Saulter

• Decision Date: 03 December 1956
• Citation: 303 P.2d 1061,146 Cal.App.2d 549
• Parties: Karl SCHRAMKO, Plaintiff and Appellant, v. W. Thomas SAULTER, Defendant and Respondent. Civ. 8845.
• Court: California Court of Appeals Court of Appeals

Page 1061

303 P.2d 1061

146 Cal.App.2d 549

Karl SCHRAMKO, Plaintiff and Appellant, v. W. Thomas SAULTER, Defendant and Respondent.

Civ. 8845.

District Court of Appeal, Third District, California.

Dec. 3, 1956.

As Corrected Jan. 2, 1957.

Barnett & Robertson, Rodney H. Robertson, San Francisco, for appellant.

Geary, Spridgen & Moskowitz, Santa Rosa, for respondent.

VAN DYKE, Presiding Justice.

This is an appeal from an order granting respondent's motion for a new trial and from the judgment entered in respondent's favor notwithstanding the jury's verdict which awarded appellant damages in the amount of $17,500 for personal injuries sustained when the truck in which he was riding with respondent tipped over and rolled down a steep embankment.

The accident occurred on a narrow, curved highway in Mendocino County on a clear, dry afternoon. Respondent was driving his loaded truck up a steep grade at a speed of approximately six miles an hour when the vehicle suddenly jumped out of gear. Respondent did not attempt to shift, but immediately applied both the tractor and trailer brakes in an effort to come to a complete stop. Upon such application of the brakes, the truck tilted and rolled. The trial court properly instructed the jury that the appellant was entitled to the benefits of the doctrine of res ipsa loquitur and by its verdict the jury impliedly found that the inference of negligence arising therefrom had not been rebutted. The jury also impliedly found that the appellant was not a guest of respondent at the time of the accident. The trial court granted respondent's motion for judgment notwithstanding the verdict on the ground that, as a matter of law, the appellant's status was that of a guest and that, as such, he was precluded from recovering for his injuries by reason of the so-called 'guest statute'. Veh.Code, sec. 403.

It is well established that the power of the court to enter a judgment in favor of the moving party notwithstanding a verdict is the same as the power of the court to grant a nonsuit. In view of this rule, we have concluded that the trial court erred in granting a judgment notwithstanding the verdict. We think there was substantial evidence to support the jury's implied finding that the appellant had given respondent compensation for the ride. It is admitted that there was no social relationship between respondent and appellant, although for approximately four years prior to the accident respondent had lived near, and traded at, appellant's grocery store. It is likewise admitted that the purpose of the trip was to get lumber for a septic tank which appellant was constructing at his place of business. Appellant testified that he had discussed the matter with respondent and told him he 'would like to hire him to haul' the lumber. Respondent testified that appellant said to him: "You have a truck, why don't you haul me some lumber over here to do some repair work,' or--no, 'to build a cesspool or septic tank', or something; I said, 'Well, I am very busy, but at some time when I am not busy I will haul it for you.' Well, later on--I don't remember just when--but later on he told me, he said someone else, I don't remember who it was, was supposed to have hauled his lumber and didn't. He said, 'I have to get it over here, because I am building a house, and I want this finished before the house is built'; and I said, 'Well, I will tell you what Karl, now in a few days I will have a day off, I won't be busy, and I will go haul the lumber for you.' He said, 'Well, what would you charge me?', and I said, 'I have no BE plates, and I cannot make no charges, but I will haul the lumber for you." (Emphasis added.)

Respondent's claim that he stated that he could not charge for hauling the lumber was denied by appellant and his sister, who also was present at the conversation. She testified that respondent said he would be 'happy to haul it' because then the grocery bill which he owed appellant would 'go down'. She further testified that approximately two weeks later respondent came to the store and declared that he was 'ready to go for the lumber'. Thereupon she summoned appellant and he and respondent departed for the Hollow Tree Lumber Company. There the lumber was purchased and loaded on respondent's truck. On the...