Reset A A Font size: Print

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


Civ. 11938.

Decided: September 16, 1942

A. E. Bagshaw, of San Rafael, and Harold F. Riede, of San Francisco, for appellant. Freitas, Duffy & Keating, of San Rafael, and Daniel J. O'Brien, Jr., and John H. Corning, both of San Francisco, for respondents.

The plaintiff appeals from a judgment for defendants in an action for the death of plaintiff's 15 year old son, Robert Humphreys, Jr. Young Humphreys was a member of the Boy Scouts and at the time of his death he was employed as a Junior Staff Member at a Boy Scout Camp known as Camp Lilienthal located in Marin County, California. In consideration of his services at the camp in that capacity he received as a matter of contractual right his board and lodging at the camp. The camp is located about two miles from the city of Fairfax and the defendant San Francisco Area Council, Inc., Boy Scouts of America in connection with the maintenance and operation of Camp Lilienthal operated a Plymouth truck automobile between the camp and the city of Fairfax. The truck was driven by one Francis Kuckein who was also a Boy Scout employed at the camp as a Junior Staff Member. At the time of his death Robert Humphreys, Jr., was being transported in the truck from the camp to Fairfax. The trial court found that at the time of the injuries which resulted in young Humphrey's death Francis Kuckein was driving the truck as the agent, servant and employee of defendant San Francisco Area Council, Inc., Boy Scouts of America; that he was negligent in its operation; and that such negligence proximately caused the injuries and resulting death of Humphreys, Jr. The trial court also made the following findings of fact:

“That it is true that all junior staff members of said Camp, including the said Robert Humphreys, Jr. * * * were privileged to receive, and actually did receive transportation to and from Camp Lilienthal in the said Plymouth truck automobile which was maintained, in part, for said purpose, and that all other members of the said Camp Lilienthal not performing services of some sort, and therefore not having the status of Junior Staff members, did not have said privilege and actually did not receive said transportation; that said privilege was revocable at any time at the will of said defendants or either of them.

“* * * it is true that * * * the said Robert Humphreys, Jr. was riding in the aforementioned Plymouth truck automobile; that at said time the said Robert Humphreys, Jr. was riding in said truck from Camp Lilienthal to the city of Fairfax on a mission personal to himself; that at said time the said Robert Humphreys was riding in said truck by virtue of the privilege afforded him by the defendant San Francisco Area Council, Inc., Boy Scouts of America * * *.”

As a conclusion of law the court found:

“That at said time Robert Humphreys, Jr. was a guest in said Plymouth truck automobile and not a passenger therein by virtue of his employment * * * or otherwise.”

This appeal presents primarily the question whether the facts found by the trial court support the conclusion of law above quoted. In approaching this question certain rules of law which have been worked out by the courts in construing the so–called guest statutes of this and other states should be borne in mind. Among these may be mentioned the following: 1. Being in derogation of the common law the guest laws must be construed strictly. Vehicle Code, § 403, St.1935, p. 154. Rocha v. Hulen, 6 Cal.App.2d 245, 254, 44 P.2d 478; Prager v. Isreal, 15 Cal.2d 89, 93, 98 P.2d 729. 2. In construing the law the courts should consider not only the language of the statute itself, but also the purpose of the enactment and the nature of the evil against which it was directed. McCann v. Hoffman, 9 Cal.2d 279, 282, 70 P.2d 909; Rocha v. Hulen, supra; Crawford v. Foster, 110 Cal.App. 81, 87, 293 P. 841. 3. That in order to take a person riding in an automobile out of the guest status it is not necessary that the compensation for the ride be a strict contractual consideration or that an enforceable contract relation relative to the ride should exist between the parties. Haney v. Takakura, 2 Cal.App.2d 1, 7, 37 P.2d 170, 38 P.2d 160; Scholz v. Leuer, 7 Wash.2d 76, 109 P.2d 294, 299; Peronto v. Cootware, 281 Mich. 664, 275 N.W. 724; Russell v. Parlee, 115 Conn. 687, 163 A. 404, 406. 4. That in construing such statutes consideration should not only be given to the meaning of the language “without giving compensation for the ride” or its equivalent in other statutes, but also to the meaning of the word “guest” as used in such statutes. Rocha v. Hulen, supra; Knutson v. Lurie, 217 Iowa 192, 251 N.W. 147, 149; Smith v. Clute, 277 N.Y. 407, 14 N.E.2d 455, 458. 5. That where the excursion is not purely social any benefit to the driver or owner of the automobile conferred or anticipated, or mutual benefit present or anticipated to the driver or owner and the person carried, is sufficient to take the case out of the statute. Crawford v. Foster, supra; Walker v. Adamson, 9 Cal.2d 287, 70 P.2d 914; Druzanich v. Criley, 19 Cal.2d 439, 122 P.2d 53; Carey v. City of Oakland, 44 Cal.App.2d 503, 112 P.2d 714; Duclos v. Tashjian, 32 Cal.App.2d 444, 90 P.2d 140; Boyson v. Porter, 10 Cal.App.2d 431, 52 P.2d 582.

Thus, to enlarge somewhat upon the principles above stated, the court said in Crawford v. Foster, supra, 110 Cal.App. at page 87, 293 P. at page 843:

“It has been held that the terms of a statute should be construed with their intent and purpose in view. Evans v. Selma Union High School Dist., 193 Cal. 54, 222 P. 801, 31 A.L.R. 1121. The purpose and object that the Legislature had in mind sometimes throws light upon the meaning of the language used. The situation that this section was apparently designed to prevent is well known. As the use of automobiles became almost universal, the proverbial ingratitude of the dog that bites the hand that feeds him, found a counterpart in the many cases that arose, where generous drivers, having offered rides to guests, later found themselves defendants in cases that often turned upon close questions of negligence. Undoubtedly, the Legislature, in adopting this act, reflected a certain natural feeling as to the injustice of such a situation. Neither this feeling nor the reasons therefor apply to a situation arising out of an ordinary business transaction, such as the efforts of a dealer to sell an automobile to a customer.”

In Rocha v. Hulen, supra, 6 Cal.App.2d at page 254, 44 P.2d at page 483, we find the following language:

“In all the cases having to do with guest statutes, it appears that the various courts have had distinctly in thought the question of whether the circumstances presented bring the case within the intent and purpose to be accomplished, and the evils to be remedied by the enactment of such statutes, as well as whether the plaintiff is within the language appearing in the statutes being considered.

“The common–law right of having redress for injuries wrongfully inflicted, being lessened by such statutes, necessitates strict construction, and also that cases be not held within the provisions of such statutes unless it clearly appears that it should be so determined.”

In construing the guest law, Vehicle Code, § 403, St.1935, p. 154, our courts have determined that persons, in the following situations, among many others, were not within the meaning of the statute: A plumber being taken by the owner of land to look at a broken pump, although he had not contracted to repair it (Duclos v. Tashjian, supra); a person engaged with the driver in a joint business venture (Walker v. Adamson, supra); a friend accompanying a patient in an ambulance at the request of the ambulance driver (Carey v. City of Oakland, supra); a person who shared in the driving where the driver otherwise would not have undertaken the trip (Druzanich v. Criley, supra); a supporter of a candidate for public office while riding in an automobile loaned for the purpose of furthering the campaign (Boyson v. Porter, supra); a child riding in a school bus (Smith v. Fall River, etc., School Dist., 118 Cal.App. 673, 5 P.2d 930); a boy riding with another to learn a paper route in the expectation that he might later take it over if a vacancy occurred. Sumner v. Edmunds, 130 Cal.App. 770, 21 P.2d 159.

It may be said of these cases generally that they show a marked tendency on the part of our courts in construing our guest law to take a broad and realistic and not a narrow or technical legalistic view of the situation and relation of the parties in determining whether an injured occupant of an automobile was or was not a guest within the meaning of the statute at the time of receiving an injury.

Turning to cases dealing directly with the transportation of an employee to or from his place of employment, where the carriage of the employee was not a matter of contract right, we have found the following: Kruy v. Smith, 108 Conn. 628, 144 A. 304; Russell v. Parlee, supra; White v. Gregory, 161 Va. 414, 170 S.E. 739; Garrett v. Hammack, 162 Va. 42, 173 S.E. 535; Monison v. McCoy, 266 Mich. 693, 256 N.W. 49; Peronto v. Cootware, supra; Knutson v. Lurie, supra; Bummer v. Liberty Laundry Co., 48 Cal.App.2d 648, 120 P.2d 672.

In Kruy v. Smith, supra, a laundress was being transported to her employer's home in the employer's automobile when injured, instead of travelling by street railway as she was accustomed to do. The court reversed a judgment on a directed verdict for defendant. In construing the Connecticut guest law the court said at page 305 of 144 A.:

“The Legislature, when it used the word ‘guest,’ did not intend to include persons who are being transported for the mutual benefit of both the passenger and the operator or owner of the car, and, in determining whether the transportation was for the mutual benefit of both, not merely the act of transportation must be considered, but also any contract or relationship between the parties to which it was an incident.”

In Russell v. Parlee, supra, the defendant owned a farm which was worked by one Grant. Grant employed the plaintiff to help him in the farm work and plaintiff was injured while being conveyed to the farm by defendant in defendant's automobile. The supreme court of errors of Connecticut in affirming a judgment for plaintiff based on simple negligence said at page 406 of 163 A.:

“We are here concerned, not with a relationship growing out of contract, as in the case of a bailment, but with the construction of a statute denying to a certain class of passengers in an automobile a right to recover compensation for injuries resulting from negligence in its operation, to which, prior to its enactment, they were entitled. Its operation should not be extended beyond the correction of the evils and the attainment of the permissible social objects which, it may be assumed, were the inducing reasons for its enactment. Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 [65 A.L.R. 939]. It may well have appeared to the Legislature that there were sound social reasons for denying a recovery for negligence against one who was transporting in his automobile a member of his family or a social guest or casual invitee, in an action brought by the recipient of his hospitality, which would not exist where a mutual benefit growing out of the relationship of the parties was contemplated, even though the benefit to be received was incidental, and not a technical legal benefit which the parties by their contract had bargained for as the consideration for the transportation. * * * The person transported is not a guest within the meaning of the statute if the transportation is for the mutual benefit of both parties, and in determining whether it was for their mutual benefit the relationship between the parties to which it was an incident may be considered. * * *

“The arrangement between the defendant and Grant created an identity of interest between them in the cultivation of the garden, and the transportation of the plaintiff contemplated a benefit to her by expediting the necessary work in her garden, though the actual wages of the plaintiff were to be paid by Grant instead of herself.”

In Monison v. McCoy, the supreme court of Michigan held by a divided court that a woman being driven to her home by defendant after having spent a week in defendant's home nursing his wife was entitled to recover for injuries received through simple negligence under the guest statute of that state. The majority opinion quoted from and relied on the case of Kruy v. Smith, supra.

In the later case of Peronto v. Cootware, supra [281 Mich. 664, 275 N.W. 725], the supreme court of Michigan was called upon to apply its guest statute to the following facts, quoting from the opinion of the court:

“On December 15, 1935, Clarence's wife was sick. Clarence asked Leslie to go to Hardwood, get their mother, and bring her back to take care of his wife, authorizing Leslie to tell the mother that Clarence would pay her what it was worth. Leslie drove to Hardwood and told plaintiff what Clarence wanted and agreed to do. Plaintiff acquiesced in the request, and the next day, on the return trip, the car struck an icy spot in the road, ran over an embankment, and plaintiff was injured. She sued Leslie.

“The court held plaintiff not a guest passenger, submitted the case to the jury upon the issue of ordinary negligence, and plaintiff had verdict and judgment of $2,000 damages.

“No arrangement was made nor suggested that Leslie be paid for making the trip or for transporting plaintiff. His act was wholly gratuitous and as a favor to Clarence. The sole question upon liability is whether plaintiff was a guest passenger.

“Plaintiff made the trip, not for her own pleasure or on her own business, but in order to render a requested service for Clarence. Her presence in the car had no social aspect; nor did Leslie extend the invitation to ride as a matter of hospitality. The transportation was a business proposition. If Clarence had been in the place of Leslie, the case would be clear that plaintiff was not a guest [Citing Monison v. McCoy, supra * * *]. The fact that Leslie was an uncompensated volunteer can make no difference in his relations to plaintiff.”

In White v. Gregory, 161 Va. 414, 170 S.E. 739, 740, the plaintiff was an employee of defendant Gregory. Gregory was an undertaker and plaintiff was at Gregory's funeral home to help care for the body of a woman. There being some delay Gregory said to plaintiff: “How about you going and getting something to eat?” He then instructed another employee, the defendant Miller, to “drive Mrs. White home.” The accident occurred on the way to plaintiff's home. The supreme court of appeals of Virginia said: “The court is of opinion that these facts are sufficient to support a finding that the plaintiff was not a mere guest of either Miller or Gregory.”

In Garrett v. Hammack [162 Va. 42, 173 S.E. 536], supra, the plaintiff was employed by defendant both in his home and his store. While defendant was driving her from home to store plaintiff was injured. The court said: “The jury were warranted in finding that plaintiff was a passenger in the automobile of Garrett, and this court is unanimously of opinion that her right, if any, to recover against Garrett, should be based upon proof of ordinary negligence.”

In Knutson v. Lurie, supra, plaintiff was a domestic servant in the home of defendant. She was injured through defendant's negligence while defendant was taking her to get a pair of shoes which plaintiff had left at a shop to be repaired. The supreme court of Iowa affirmed a judgment for plaintiff. While the court laid some emphasis on the fact that plaintiff took care of defendant's baby during the ride the court cited and quoted from Kruy v. Smith, supra, and Russell v. Parlee, supra, and commented:

“After reading the foregoing cases, it becomes apparent that one may be an occupant of an automobile without being a guest or a mere invitee, and yet not be a passenger for hire. * * * Furthermore, it is manifest that in determining the benefit, it is proper to take into consideration ‘not merely the act of transportation * * * but also any contract or relationship between the parties to which it was an incident.’ ” [217 Iowa 192, 251 N.W. 150.]

We have discussed and quoted from these cases at length because in a variety of circumstances, and for somewhat divergent reasons, as is natural in the construction of a new type of legislation, these decisions have all shown a trend of judicial thought in one direction, that a servant or employee being carried to or from his place of employment in his employer's automobile is not a guest within the meaning of the guest statutes even though the carriage is a matter of privilege or accommodation and not of strict contractual right.

Directly opposed to this trend of judicial thought is Bummer v. Liberty Laundry Co., 48 Cal.App.2d 648, 120 P.2d 672, 673. In that case an employee of the defendant after a change of the opening time of the laundry from 7 a. m. to 6 a. m. was informed by defendant's foreman that he would thereafter pick her up and bring her to work. This he did thereafter with one or two exceptions when he had another employee, Taylor, pick her up. On the date of the injury Taylor, at the foreman's request, picked up plaintiff in a truck of the defendant and by his ordinary negligence she was injured on the way to the laundry. The trial court gave plaintiff judgment which was reversed by the District Court of Appeal. The court said:

“Plaintiff testified that she had made no arrangement with the defendant to be furnished transportation to her work and there was no other evidence of compensation. Therefore, from the evidence which was received defendant was merely extending a courtesy to plaintiff in providing transportation, for which she was not furnishing compensation.”

The District Court of Appeal cited no authority for this conclusion, and did not consider or discuss any of the cases involving the master–servant relationship from other jurisdictions which we have enlarged upon above. No petition for hearing by our Supreme Court was filed in that case. Much as we hesitate to disagree with the conclusion of another court of equal jurisdiction, in the circumstances here present we feel that we should examine the proposition presented by this appeal in the light of the cited cases from other jurisdictions and the purpose and spirit of our guest law without feeling bound by the Bummer case as a controlling precedent.

In assaying the factors pro and con in the case before us it is to be observed that the court found that one of the purposes for which the Plymouth truck was operated was to transport Junior Staff Members between the camp and Fairfax, that Junior Staff Members were privileged to receive and actually did receive such transportation to the exclusion of members of the camp not performing some sort of services, and that Humphreys, Jr., was riding in the truck by virtue of such privilege at the time that he received his fatal injuries. On the other side are the factors that Humphreys, Jr., was riding on a mission personal to himself, and that the privilege of riding was a revocable one and not a matter of contractual right.

In weighing these factors one conclusion seems to us too clear for argument, that the ordinary boy accepting employment as a Junior Staff Member in the camp, in weighing the advantages, would take into consideration the fact that as an incident to his employment he would be furnished transportation in the camp truck to and from the town two miles distant and would not be apt to consider nor be at all concerned with the question whether such transportation was afforded him as a mere revocable privilege or as a matter of strict contractual right. The transportation, if not a consideration for, was at least an inducement to the employment. It must also be remembered as pointed out in Crawford v. Foster, supra, 110 Cal.App. at page 86, 293 P. at page 843:

“While there are exceptions, notably in the case of persons staying at a hotel, in its ordinary use the word ‘guest’ connotes something other than a business transaction.”

Here as a part of the business of operating the camp the truck was maintained, according to the findings, partly for the very purpose of transporting Junior Staff Members to and from the town. The analogy of the hotel bus seems not inapt. The operation of such busses between hotel and station, as an accommodation to patrons but not as a matter of contract right, is not uncommon. Assume a patron who has paid his bill and checked out of the hotel injured by the negligence of the bus driver on the way to the station. Would any court countenance the defense that he had accepted a ride as a guest without giving compensation for such ride?

Without going further than the facts of this case we are satisfied that where, as here, an employer not as an isolated or spontaneous single act of courtesy, but as a regular practice, affords transportation to its employees to and from the nearest town, and maintains an automobile in part for that very purpose, an employee riding to such town on an errand of his own by virtue of the privilege so afforded him is not within the spirit or the letter of our guest law, although the transportation is not a matter of contract right but a mere revocable privilege. The established and continuous character of the transportation so furnished to the employees indicates that it was regarded by the employer not as a mere social courtesy but as a business arrangement incident to the employment and of mutual benefit both to employer and employee.

Respondent San Francisco Bay Area Council, Inc., Boy Scouts of America urges in support of the judgment that it is a charitable non–profit corporation and should as such be exempt from liability for the torts of its employees. A careful reading of Silva v. Providence Hospital, 14 Cal.2d 762, 97 P.2d 798, and England v. Hospital of Good Samaritan, 14 Cal.2d 791, 97 P.2d 813, satisfies us that, while the precise question before the court in those cases was the liability of a charitable hospital to a paying patient, the effect of those decisions is to impose on charitable organizations in general the same liability for the negligence of employees as exists in the case of other employers.

Appellant claims that as to defendant Dickieson, the camp director, the judgment should be reversed because, 1. the evidence shows that he was negligent in the employment of Kuckein to drive the truck, and 2. he was negligent in allowing three boys to ride in the driver's seat on the fatal trip. The trial court found against appellant on both grounds and we are satisfied that the evidence supports the findings.

As to point one the evidence shows that Kuckein had a driver's license, that respondent Dickieson inquired of Kuckein's father and was told by the father that the boy was a good driver, that the boy drove over the road with his father in their family car to familiarize himself with it before undertaking to drive the truck, and that respondent Dickieson went over the road with Kuckein driving the truck before the fatal accident and from his observation believed him a careful driver. These facts were ample to support the finding that there was no negligence in the employment of Kuckein.

Point two is concluded by evidence that if the boy riding in the middle crossed his legs he would not interfere with the driver's operation of the truck and of the boy who rode in that position that his legs were crossed at the time of the accident.

The judgment is affirmed as to respondent Dickieson, and reversed as to respondent San Francisco Bay Area, Inc., Boy Scouts of America with directions to the trial court to try the issue of damages and enter judgment against such respondent for the damages found.

DOOLING, Justice pro tem.

NOURSE, P. J., and SPENCE, J., concurred.

Copied to clipboard