Winn v. Ferguson

• Citation: 282 P.2d 515,132 Cal.App.2d 539
• Court: California Court of Appeals
• Decision Date: 26 April 1955
• Parties: Kathleen WINN, Plaintiff and Respondent, v. Jessie Yvonne FERGUSON and G. R. Ferguson, Defendants and Appellants. Civ. 8542.

Page 515

282 P.2d 515

132 Cal.App.2d 539

Kathleen WINN, Plaintiff and Respondent, v. Jessie Yvonne FERGUSON and G. R. Ferguson, Defendants and Appellants.

Civ. 8542.

District Court of Appeal, Third District, California.

April 26, 1955.

Rehearing Denied May 13, 1955.

Hearing Denied June 23, 1955.

Fitzwilliam & Memering, Frances Newell Carr, Sacramento, for appellants.

J. Adrian Palmquist & George W. Hauer, Oakland, for respondent.

FINLEY, Justice pro tem.

This appeal is by defendants from a judgment entered upon the verdict of a jury awarding plaintiff $15,000 damages for personal injuries sustained by plaintiff in an intersection collision while she was riding in an automobile driven by appellant Jessie Ferguson with the knowledge and consent of its owner, G. R. Ferguson.

There are two points to be passed upon herein. The first: Was respondent a passenger or a guest in the automobile? The second: If respondent was a passenger was appellant Jessie Ferguson, the driver, guilty of actionable negligence, or if respondent was a guest was said driver guilty of wilful misconduct?

The collision occurred on a Saturday morning about 9:40 a. m. at the intersection of Fulton Avenue and El Camino Avenue on the outskirts of the city of Sacramento. The automobile in question was proceeding westerly on El Camino Avenue, approaching Fulton Avenue. Appellant Jessie Ferguson was driving and respondent was sitting alongside her in the front seat. Also in the front seat was the appellants' 21 months old child, and in the rear seat were respondent's two sons aged 10 years and 8 years, and also appellants' son aged about 4 years. Appellant driver had just shifted into high gear and was traveling between 10 to 25 miles per hour when her 21 months old son started climbing over the back of the front seat. Appellant's attention was attracted to this episode and while her attention was thus diverted she drove into the intersection without observing the stop sign. There her automobile was struck broadside on its right by another vehicle which had the right of way. Appellants' car was completely demolished and respondent rendered unconscious for approximately a week. The seriousness of respondent's injuries is not disputed. Neither is it contended that the amount of damages awarded is excessive. However, appellants maintain that respondent is barred from recovery by section 403 of the Vehicle Code, which provides:

'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 such vehicle * * * on account of personal injury to * * * such guest during such ride, unless the plaintiff in any such action establishes that such injury * * * proximately resulted from the intoxication or wilful misconduct of said driver.'

We are in accord with appellants' theory that they are liable for respondent's injuries only if respondent gave 'compensation' for the ride. There is no evidence from which it could sensibly be found that appellant Jessie Ferguson was guilty of wilful misconduct unless we are to pervert the plain meaning of the statute. It is one thing to leave questions of fact upon which reasonable minds might differ to the decision of a jury, but quite another where there is only one possible reasonable answer. Certainly the term 'reasonable minds' would here lose all significance as a practical, ordinary and common sense measure of conduct were we to so far stray from reality as to hold that a mother's protective glance at her young child could be considered as wilful misconduct even at the time and place where the hazard was considerable. Courts have sometimes held that law is reason, which we take to mean reason according to the standards of ordinary people in everyday life. Although appellant turned her head to look at the child and disregarded or failed to see the stop sign, there is no evidence that her inattention to her driving was more than momentary or that it was done or continued for any appreciable distance over the warning or protest of respondent as in the case of Frank v. Myers, 16 Cal.App.2d 16, 60 P.2d 144, upon which respondent relies. Appellant driver of the car did testify that respondent screamed 'Stop' but this was apparently as they were about to be struck, as will be indicated by the following question and appellant's answer: 'Q. The whole thing happened very fast? A. Yes. She screamed and then we got it.' Neither were appellant's actions coupled with excessive speed and reckless driving as in Allen v. Robinson, 85 Cal.App.2d 617, 193 P.2d 498. It is admitted that prior to her momentary inattention to her driving appellant was proceeding slowly and in a cautious and careful manner. A finding of wilful misconduct cannot be predicated upon mere inadvertence or even gross negligence. It was, therefore, error to instruct the jury that respondent was entitled to recover if they found that appellant was guilty of wilful misconduct. It is true that the jury may not have so found but may have based the verdict on a finding that respondent had given 'compensation' for the ride and could, therefore, recover upon a finding that appellant was negligent. 'But we have no means of determining which theory prompted the jury to return its verdict' and the judgment must, therefore, be reversed. Wright v. Sniffin,80 Cal.App.2d 358, 365, 181 P.2d 675.

A further determination to be made is whether upon such reversal judgment should be directed in favor of appellants pursuant to section 629 of the Code of Civil Procedure. This depends upon whether from the whole of the evidence a verdict should have been directed in favor of appellants, as requested, or whether their motion for judgment notwithstanding the verdict should have been granted. Both such motions were made and denied. As already noted, the verdict in favor of respondent cannot be sustained on the count of the complaint based on the alleged wilful misconduct of the appellant. However, there was sufficient evidence to take the case to the jury on the issue of appellant's negligence if the facts would permit a finding that respondent 'gave compensation' for the ride and that her status was that of a 'passenger,' and not a 'guest.' Therefore, the question is whether there was any evidence from which it could reasonably be deduced that respondent had given 'compensation' for the ride within the meaning of section 403 of the Vehicle Code. Ordinarily, 'It is for the trier of fact to determine whether the rider conferred a benefit or whether the ride was merely of a social nature.' Follansbee v. Benzenberg, 122 Cal.App.2d 466, 471, 265 P.2d 183, 186. That is, it is for the jury to resolve any conflict in the evidence, or any reasonable inferences which may be drawn therefrom. Kruzie v. Sanders, 23 Cal.2d...