Thompson v. Lacey

Citation42 Cal.2d 443,267 P.2d 1
PartiesTHOMPSON v. LACEY. L. A. 22890.
Decision Date05 March 1954
CourtUnited States State Supreme Court (California)

Luce, Forward, Kunzel & Scripps and Edgar A. Luce, Jr., San Diego, for appellant.

Gray, Cary, Ames & Frye, Ward W. Waddell, Jr., and Alfred S. Wilkins, San Diego, for respondent.

CARTER, Justice.

A judgment of nonsuit, the subject of this appeal, was entered in plaintiff's action for the death of her husband, Virgil T. Thompson, allegedly caused by the negligence or wilful misconduct of Donald Kerns in operating a car in which Thompson was riding. The administrator of the Kerns estate is defendant, plaintiff having dismissed the action as to defendants Kelley-Moyer Transportation Company and Charles Fogle.

The sole issues are whether Thompson was a guest or passenger in the car being driven by Kerns when Thompson, riding therein, met his death, and, if the former, whether Kerns was guilty of wilful misconduct thus being liable although Thompson was a guest.

No person who as a guest accepts a ride in a vehicle without giving compensation has a right of action for damages against the driver unless he establishes that the damages were caused by the intoxication or wilful misconduct of the driver. Vehicle Code, § 403. 'The designations 'passenger' and 'guest' have been adopted for the purpose of distinguishing a person who has given compensation within the meaning of section 403 of the Vehicle Code from one carried gratuitously.' Whitmore v. French, 37 Cal.2d 744, 746, 235 P.2d 3, 5. No question concerning Kerns' negligence is presented.

At the time of the accident Kerns was driving his car with Thompson riding in the front seat with him and Mr. Dreis in the back seat. In endeavoring to pass a car ahead of him in foggy weather, Kerns' car collided head on with an oncoming truck. Kerns, Thompson and Dreis were employees of Arrowhead and Puritas Water Company and were en route from San Diego to Los Angeles. 1 Kerns was manager for the company in the San Diego area. Under his supervision were Dreis and Thompson, each of whom was a sales supervisor for a portion of that area; their duty was to supervise the selling and delivery activities of salesmen selling and delivering bottled water, the company's product. Before the day of the accident, Kerns, Thompson and Dreis received notice from the company requesting that they attend a company meeting in Los Angeles of all the branch managers and sales supervisors. The meeting was one of a series of regular monthly meetings inaugurated in 1950 (prior to that time the meetings had been irregular) and it was necessary that all three attend because the matter to be considered was important to them and to the company in their work and its business. While there was no 'set' policy for transportation of the employees to the meetings, that is, they could come by private car or public transportation, as they chose, the company knew Thompson and Dreis had ridden with Kerns in the latter's car to attend several meetings and did not object. The company reimbursed the employees for expenses incurred in coming to the meetings, including an allowance of 7 cents a mile for the first 500 miles when a private car was used. The employee driving his car to the meeting would get the mileage, and those riding with him would not, which was 'more economic' for the company as expressed by Swanburg, the company's manager of all branches, and is plainly inferable from the evidence.

We have a situation then in which several employees of a company, in the course of their employment, are riding in the car of one of the employees for the purpose of attending a meeting called by the company in connection with its business. The employee owning the car receives mileage for its use in the employer's business from the employer. Although it may be small, clearly the owner of the car receives a tangible benefit from the employer. While he would have received the same amount whether or not he carried other employees with him, the fact remains that he did receive it under conditions in which he was transporting other employees on the employer's business and his employer knew he engaged in that practice. It may be inferred that Thompson and Dreis went to the meeting with Kerns because they considered a suggestion by him that they do so as a command inasmuch as he was their supervisor. The company thereby received an economic benefit because it would pay less traveling expenses to its employees attending the meeting by reason of the arrangement whereby only one employee (Kerns, the owner of the car) would receive mileage, since the employer, in effect, was paying the one employee to bring the others to the meeting. This means that the one driving the car would receive a benefit for supplying transportation to a fellow employee, not from the fellow employee but from his employer. We know of no authority, however, which holds that compensation for the transportation must be paid by the one transported in order to make it transportation for compensation under section 403 of the Vehicle Code. The compensation may be paid by someone other than the rider. Malloy v. Fong, 37 Cal.2d 356, 232 P.2d 241; Whitechat...

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30 cases
  • Mittelman v. Seifert
    • United States
    • California Court of Appeals Court of Appeals
    • April 23, 1971
    ...Mittelmans from the guest category. (Tucker v. Landucci (1962) 57 Cal.2d 762, 766, 22 Cal.Rptr. 10, 371 P.2d 754; Thompson v. Lacey (1954) 42 Cal.2d 443, 446--447, 267 P.2d 1; Martinez v. Southern Pacific Co. (1955) 45 Cal.2d 244, 250--251, 288 P.2d 868; cf. Halbert v. Berlinger (1954) 127 ......
  • Marquez v. Rapid Harvest Co.
    • United States
    • Arizona Court of Appeals
    • September 22, 1965
    ...McFarland, Cal.App., 41 Cal.Rptr. 530 (1964) gives effect to the 1959 statutory amendment which abrogates the rule of Thompson v. Lacey, 42 Cal.2d 443, 267 P.2d 1 (1954); Michigan, Sergeant v. Kennedy, 352 Mich. 494, 90 N.W.2d 447 (1958), which gives effect to the 1952 statutory amendment w......
  • Lightenburger v. Gordon
    • United States
    • Nevada Supreme Court
    • November 10, 1965
    ...was a passenger. They are, however, slanted in that direction. We think the observation of the California court in Thompson v. Lacey, 42 Cal.2d 443, 267 P.2d 1 (1954) significant. There several employees of a company, in the course of employment, rode together to their company's meeting. Th......
  • Price v. King
    • United States
    • Iowa Supreme Court
    • November 15, 1966
    ...Ariz. 363, 409 P.2d 285, only by reason of absence of jurisdictional notice; King v. Cardin, 229 Ark. 929, 319 S.W.2d 214; Thompson v. Laccy, 42 Cal.2d 443, 267 P.2d 1; Stulginski v. Cizauskas, 125 Conn. 293, 5 A.2d 10, 11--12; Cuyler v. Elliott, Fla.App., 182 So.2d 55; Gay v. Greene, 91 Ga......
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