Stephan v. Proctor

• Decision Date: 22 June 1965
• Citation: 235 Cal.App.2d 228,45 Cal.Rptr. 124
• Court: California Court of Appeals Court of Appeals
• Parties: Barbara STEPHAN, Plaintiff and Appellant, v. Minnie PROCTOR et al., Defendants and Respondents. Civ. 28489.

Page 124

45 Cal.Rptr. 124

235 Cal.App.2d 228

Barbara STEPHAN, Plaintiff and Appellant, v. Minnie PROCTOR et al., Defendants and Respondents.

Civ. 28489.

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

June 22, 1965.

Hearing Denied Aug. 18, 1965.

Haskell J. Shapiro and Louis I. Bell, Los Angeles, for appellant.

Gilbert, Thompson & Kelly and Jean Wunderlich, Los Angeles, for respondents.

ROTH, Presiding Justice.

Appellant sustained personal injuries riding in respondent's car.

The trial court granted a motion for nonsuit following appellant's opening statement to the jury, as the same was supplemented by additional facts. This appeal is from the judgment of nonsuit.

Appellant asserted she would prove that she and respondent, both divorcees, were living in the same apartment house on July 23, 1961. Respondent was in the process of securing a second divorce and was extremely depressed and despondent, whereupon appellant, hoping to cheer up respondent, invited her to dinner. Appellant offered to pay for the evening's expenses. The invitation was accepted. When the two women entered the apartment garage to proceed in appellant's car, respondent suggested that they take respondent's car because appellant's car was a convertible with the top down and respondent did not want to muss her hair. They drove away in respondent's car. Appellant directed respondent where to go.

Before reaching the restaurant, the women stopped at a bar for a drink. Following the drink, respondent told appellant that she wanted to go home rather than to dinner. The accident happened en route home, respondent driving. Appellant had paid the expenses of the evening. These included one drink each woman had at the bar and the parking fee incurred.

Appellant asserts 'that she was the host in inviting [respondent] out for the evening, and had promised to pay for all expenses of the evening; that she did pay such expenses as in fact arose * * *. That [respondent] had declined dinner after they reached their destination. To this was the added fact that the trip was entered upon primarily for the benefit of [respondent], to improve her mental and physical well-being by going out for the evening, in the expectation that the evening out would provide therapy or psychological relief for [respondent's] depression.' Appellant contends that the facts hereinabove outlined establish her status as a passenger rather than a guest under Vehicle Code, section 17158.

Section 17158 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 or against any other person legally liable for the conduct of the driver on account of personal injury to * * * the guest during the ride, unless the plaintiff in any such action establishes that the injury * * * proximately resulted from the intoxication or wilful misconduct of the driver.'

There is no contention that there was either wilful misconduct or intoxication.

There is no contention nor is there any evidence that appellant paid respondent for gasoline, hire of the auto used in the form of mileage or other forms of rent.

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. A secondary policy, of course, is to prevent collusive suits between friends where the driver admits negligence in order to shift the burden to his insurance carrier. (26 Cal.Law Review 251, 252.) These underlying policies of the act must not be lost sight of in analyzing a given fact situation. (McCann v. Hoffman, 9 Cal.2d 279, 282, 70 P.2d 909.)

The cases have consistently held that the designations 'passenger' and 'guest' have been adopted for the purpose of distinguishing a person who has given compensation within the meaning of section 17158 from one carried gratuitously. '* * * [T]he benefit to the driver must be something more than simply the pleasure of the rider's company * * *; and 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.' Martinez v. Southern Pacific Co., 45 Cal.2d 244, 250-251, 288 P.2d 868, 871.) 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, 293 P. 841). Moreover, the tangible benefit, not mere pleasure, kindness or friendship, must be the principal inducement...