Trigg v. Smith

• Decision Date: 17 November 1966
• Citation: Trigg v. Smith, 246 Cal.App.2d 510, 54 Cal.Rptr. 858 (Cal. App. 1966)
• Court: California Court of Appeals
• Parties: Alice R. TRIGG, Plaintiff and Appellant, v. Cornella SMITH, Administratrix of the Estate of Estelle Marian Brown, Defendant and Respondent. Civ. 695.

Page 858

54 Cal.Rptr. 858

246 Cal.App.2d 510

Alice R. TRIGG, Plaintiff and Appellant, v. Cornella SMITH, Administratrix of the Estate of Estelle Marian Brown, Defendant and Respondent.

Civ. 695.

Court of Appeal, Fifth District, California.

Nov. 17, 1966.

Hearing Denied Jan. 25, 1967.

[246 Cal.App.2d 511] Virga & Fields and Michael J. Virga, Sacramento, for appellant.

Rust & Hoffman, Robert Hoffman, Sacramento, and Ellis J. Horvitz, Los Angeles, for respondent.

OPINION

CONLEY, Presiding Justice.

On a wet and stormy night, the plaintiff, Alice R. Trigg, aged 69, accepted a ride from the Department of Motor Vehicles building in Sacramento to her home at 616--41st Street as a guest of her friend of 30 years, Mrs. Estelle Brown. When Mrs. Brown reached the vicinity of the Trigg home, which was on the left side of a north and south bound street, she noticed that the gutter in front of the residence was choked with water, and, consequently, she drove the automobile across the street and parked it so that the left wheels were on the sidewalk and the right wheels remained on the roadway. The two women talked for a few minutes and then Mrs. Brown stepped out of the car, leaving the motor running and the transmission in the drive position, without setting the emergency brake. Mrs. Trigg moved across the seat in order to get out on the driver's side; as she reached the vicinity of the steering wheel, the car suddenly lurched forward and traveled a distance of approximately 120 feet where it forcibly hit a tree with the result that the right knee of the plaintiff was shattered.

The record shows that the plaintiff spent weeks in the hospital and that she was severely, and in part permanently, injured to her general damage, as she claimed, in the sum of $75,000 besides her special damages for hospital, surgical, and doctor's fees.

The complaint alleged that the ride had terminated under the theory more explicitly discussed at a later point in the opinion, and, while Mrs. Brown demurred to the pleading because it did not allege '* * * intoxication or willful misconduct of the driver' (Veh.Code, § 17158), the judge overruled the objection to the complaint on the ground that the allegation to the effect that the 'ride had terminated' presented a question to be determined upon the trial.

After the filing of the action, Mrs. Brown died from causes not connected with the accident and in a supplemental complaint Cornelia Smith, as the administratrix of the estate of the decedent, was substituted as defendant. The case was tried by the court without a jury. At the conclusion of the presentation of plaintiff's evidence, the defendant moved for judgment pursuant to section 631.8 of the Code of Civil Procedure; the motion was granted and the court filed findings of fact and conclusions of law as well as a judgment. The trial court found in favor of the defendant on two issues, both of which are attacked by the appellant as the basis of the appeal:

1) The court determined that the plaintiff still was a 'guest' at the time of her injury and that the defendant was, therefore, protected by the provisions of the statute (§ 17158, Veh.Code) in that the ride which the plaintiff concededly accepted as a guest had not yet been terminated at the time of the plaintiff's injury; and

2) While the court held that the driver was guilty of negligence in failing to set her emergency brake and by leaving her motor running with the transmission in the drive position, the court also found that Mrs. Trigg was guilty of contributory negligence as she moved over to get out of the driver's side.

Plaintiff made a motion in due course to vacate the judgment and enter a different judgment, and this motion after a full hearing was denied by the court. It is suggested by the defendant that an appeal will not properly lie from this latter order; however, it has been recognized that where such a motion is made, pursuant to section 663 of the Code of Civil Procedure, there may properly be an appeal from an order denying the motion. (Sinclair v. Baker, 219 Cal.App.2d 817, 820, 33 Cal.Rptr. 522; Polk v. Polk, 228 Cal.App.2d 763, 768, 39 Cal.Rptr. 824.)

As already indicated, the two main questions to be resolved on the appeal are:

1) Was appellant a 'guest' within the meaning of the statute at the time of the accident so as to deprive her of a cause of action for damages for personal injuries against the driver of the vehicle by reason of the driver's negligence?

2) Is there sufficient evidence in the record to support the trial court's finding that appellant was guilty of contributory negligence?

On the first question, respondent relies heavily on the holding in Panopulos v. Maderis, 47 Cal.2d 337, 303 P.2d 738. In the Panopulos case, four plaintiffs appealed from judgments on verdicts for defendant. The plaintiffs had attended a card party in Mountain View and had traveled from San Jose with the defendant as guests in her automobile; on the return trip, Mrs. Fitts sat in the front seat next to the defendant; in San Jose, defendant stopped her automobile in front of Mrs. Fitts' home on level ground, stepped out of the car, and stood at the side; the car was equipped with automatic transmission and the defendant left the shift lever in neutral with the motor running; from this position, very little force was required to move the gear shift lever to 'drive,' whereas had it been left in the park status, it would have been first necessary to lift the lever before changing its position. Mrs. Fitts attempted to alight; she was elderly and had never driven an automobile, and in sliding across the seat to the driver's side she apparently caused the gear shift lever to be moved and she also touched the accelerator. The car went forward, jumped the curb, smashed against a wall, and all four plaintiffs were injured; they sued; judgments for defendant were affirmed on appeal on the ground that the plaintiffs were guests.

Appellant's counsel makes an ingenious argument depending wholly upon a narrow and literal reading of section 17158 of the Motor Vehicle Code. He argues...