Shapiro v. Bookspan

• Decision Date: 20 November 1957
• Citation: 318 P.2d 123,155 Cal.App.2d 353
• Parties: Sarah SHAPIRO, Plaintiff and Appellant, v. Zeena BOOKSPAN and Saul Bookspan, Defendants and Respondents. Civ. 22148.
• Court: California Court of Appeals Court of Appeals

Page 123

318 P.2d 123

155 Cal.App.2d 353

Sarah SHAPIRO, Plaintiff and Appellant, v. Zeena BOOKSPAN and Saul Bookspan, Defendants and Respondents.

Civ. 22148.

District Court of Appeal, Second District, Division 3, California.

Nov. 20, 1957.

Louis S. Edelberg, Los Angeles, for appellant.

Spray, Gould & Bowers, Los Angeles, for respondents.

SHINN, Presiding Justice.

By amended complaint, plaintiff Sarah Shapiro sought to recover $150,000 damages from her daughter, Zeena Bookspan, and her son-in-law, Saul Bookspan, for personal injuries allegedly sustained as the result of a collision which occurred while plaintiff was riding in an automobile owned by the defendants and which was being driven by Zeena.

The amended complaint stated two causes of action. In the first count it was alleged that plaintiff was a guest in Zeena's automobile and that her injuries were proximately caused by her daughter's wilful misconduct in driving at a reckless rate of speed and in proceeding through a main intersection without stopping, although the intersection was controlled by red flashing danger signals which required Zeena to stop. In the second count it was alleged that plaintiff was a passenger in Zeena's automobile in that she had acted as a baby sitter for Zeena upon Zeena's express promise that she would drive plaintiff back to her own home, and that plaintiff's injuries were proximately caused by Zeena's negligence. The answer admitted that a collision had occurred and that plaintiff had suffered injury, but denied the other material allegations of the amended complaint. Trial was to a jury which returned a verdict for the defendants. Plaintiff appeals from the judgment entered upon the vereict of the judgment entered upon the verdict of

The following facts were developed in the evidence. The accident occurred shortly after midnight on April 18, 1954, while Zeena was driving her mother home after spending the evening at the Bookspan residence. On the preceding day, Zeena telephoned plaintiff, who was a 68-year old widow, and asked plaintiff to come to her house in West Los Angeles and baby sit for her 7-year old son, Mark, while she and her husband went out for the evening to celebrate the confirmation of a new position Mr. Bookspan had obtained in Toledo, Ohio. Plaintiff agreed to come, but she told Zeena that she was very tired and would do so only on condition that Zeena would drive her home so that she could sleep in her own bed. Zeena consented.

That afternoon Zeena called for her mother and took her to the Bookspan house, where a party in celebration of Mark's seventh birthday was in progress. After the party Zeena took her mother grocery shopping and ran some errands of her own; she occasionally drove her mother to the market because plaintiff did not have a car. After passing by plaintiff's house to drop off the groceries, they returned to Zeena's home. Plaintiff helped Zeena prepare dinner. The Bookspans left around 8 p.m. and returned sometime after eleven; plaintiff stayed with her grandson.

Plaintiff testified that prior to April 17th she had gone to her daughter's house to baby sit on an average of once a month. Zeena stated that her mother sometimes took the bus to get to her house but that she always drove plaintiff to her own home to spend the night, except on one occasion when a heavy rain had caused the streets to flood. Plaintiff stated that she went to her daughter's home on April 17th only for the purpose of baby sitting and that she did so solely in order to save Zeena the expense of hiring a professional baby sitter. Zeena was her only daughter; being a widow, she lived alone. On cross-examination she admitted that she enjoyed visiting her daughter and grandson.

After the Bookspans returned, Zeena started to drive plaintiff to her residence, which was located on Cattaraugus Street in Culver City, a few blocks south of Venice Boulevard. Plaintiff stated that Zeena was driving south on Cattaraugus at an excessive rate of speed and that she told her daughter several times to slow down. The accident occurred at the intersection of Venice Boulevard and Cattaraugus. At the location of the accident, Venice is divided by an island, some 70 feet wide, which was formerly used as a streetcar right-of-way. There are four westbound lanes on Venice directly north of the island and four eastbound lanes directly south. The island was covered with weeds which, on April 18th, were three feet high and made it difficult for drivers going south on Cattaraugus to see the eastbound traffic on the south side of the island. There was a stop sign at the northern entrance to Venice Boulevard and entrance into the southern half of Venice was controlled by a system of flashing red lights. Traffic proceeding east on Venice was governed by a system of flashing yellow lights.

The testimony as to the events which immediately preceded the collision was conflicting. Plaintiff testified that Zeena did not come to a full stop before entering Venice, but drove across the northern half of the boulevard and continued past the island into the eastbound lanes without stopping for the flashing red lights. The car was struck broadside by an eastbound automobile which was being driven by Alvin Blue. Blue testified that he first saw Zeena's car when he was about 20 or 25 feet from the intersection as it suddenly sped across his path; the cars collided before he could apply his brakes. Charlie Rickels, a pedestrian who was standing on the southwest corner of Venice and Cattaraugus, testified that he saw Zeena's car stop before crossing into the eastbound lanes on Venice and that Blue was approaching the intersection at a high rate of speed. Zeena stated that she made a complete stop at the entrance to the intersection, then crossed the westbound lanes of Venice Boulevard and proceeded past the island without coming to a full stop before entering the south half of Venice. The weeds obstructed her vision of traffic going east on Venice. As she started across the southern half of the boulevard she saw the lights of Blue's car and accelerated, so as to cross the street ahead of it. Plaintiff was severely injured in the accident and was confined to the hospital for 101 days.

Plaintiff urges two grounds for reversal of the judgment: (1) The court erred in refusing to instruct the jury that plaintiff was a passenger as a matter of law and that Zeena owed to her mother the duty of exercising ordinary care in the operation of the automobile; (2) The jury was improperly reinstructed as to the issues involved in the case. It is not contended that the evidence was insufficient to support the verdict.

The first contention to be considered is that the court erred in refusing to give two instructions proposed by plaintiff which would have told the jury that plaintiff was a passenger in her daughter's car and that at the time of the collision Zeena owed her mother the duty to exercise ordinary care. Plaintiff argues that under the undisputed evidence the ride home was in payment for services she rendered to Zeena as a baby sitter and that her services constituted compensation for the ride; it is her position that as a matter of law the guest statute was inapplicable. Zeena argues, on the other hand, that the evidence was susceptible of two opposing and equally reasonable interpretations or inferences and that the question of plaintiff's status was properly left to the jury. We agree. In our opinion, the court did not err in refusing to instruct the jury that plaintiff was a passenger as a matter of law.

While a driver is liable to his passenger for injury caused by the driver's ordinary negligence, the guest statute limits the liability of a driver for injury to his guest to cases where the injury was the result of the former's intoxication or wilful misconduct. Veh.Code § 403. A passenger is one who gives compensation for a ride. Follansbee v. Benzenberg, 122 Cal.App.2d 466, 471, 265 P.2d 183, 42 A.L.R.2d 832. Where the driver has received a tangible benefit, monetary or otherwise, which is a motivating influence for furnishing the transportation, compensation may be said to have been given, with the result that the rider is a passenger and the driver is liable to him for simple negligence. Martinez v. Southern Pacific Co., 45 Cal.2d 244, 288 P.2d 868. But whether the rider conferred a benefit or whether the ride was merely of a social nature is ordinarily a question of fact for the jury. Gosselin v. Hawkins, 95 Cal.App.2d 857, 861, 214 P.2d 110; Follansbee v. Benzenberg, supra, 122 Cal.App.2d 466, 471, 265 P.2d 183, and cases ...