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District Court of Appeal, Second District, Division 1, California.


Civ. 13940.

Decided: April 15, 1943

Harry Rabwin and Monroe R. Rubin, both of Los Angeles, for appellant. Lasher B. Gallagher, of Los Angeles, for respondent.

This action was commenced by plaintiff to recover damages for injuries sustained by her when an automobile in which she was riding and which was being operated by defendant Sarajo Krumgold left the highway and turned over. The accident occurred in the State of Nebraska on the 11th day of July, 1940. Prior to leaving Los Angeles County on the automobile trip, the destination of which was New York City, plaintiff and defendant Sarajo Krumgold were strangers to each other and they had agreed to share the expenses of the gas and oil used en route. By her complaint plaintiff set forth two causes of action, the first of which was based on the theory that plaintiff was a passenger for compensation and that the above–mentioned defendant was guilty of negligence in the operation of the vehicle; while the second cause of action was predicated upon the theory that plaintiff was a guest in the automobile, and that the defendant driver was guilty of gross negligence as that term is defined by the automobile guest statute of the State of Nebraska, Comp.St.Supp.1941, § 39–1129.

During progress of the voir dire examination of the first twelve prospective jurors at the opening of the trial, defendant offered a motion to the court asking that plaintiff be required to make an election between the first and second causes of action. This motion was granted whereupon plaintiff elected to proceed to trial on the first cause of action based upon the theory that she was a passenger for compensation and charging defendant driver with ordinary negligence in the operation by her of the automobile. On defendant's motion the court then dismissed the second cause of action. At the conclusion of all the evidence, defendant moved for a directed verdict on the ground that plaintiff, as a matter of law, was not a passenger for hire but was at most a guest in defendant's automobile. This motion was granted and judgment for the defendants was accordingly entered thereon January 7, 1942.

On January 12th plaintiff served and filed a notice of intention to move for a new trial and on March 6th an order was entered by the court granting plaintiff's motion for a new trial “as to the second cause of action in plaintiff's complaint only”. Defendants appealed from the order granting a motion for new trial as to the second cause of action based on the “guest” theory. Such order was affirmed by this court. Horstman v. Krumgold, 55 Cal.App. –––, 130 P.2d 721.

Plaintiff now prosecutes this appeal from the judgment entered upon the directed verdict as to the first cause of action based on the theory that she was a passenger for compensation.

Because this appeal comes before us from a judgment entered after an order directing a verdict, it becomes necessary to epitomize the facts of the case, reciting the testimony thereof in a light most advantageous to the plaintiff, resolving all conflicts in her favor and giving to her the benefit of every fact pertinent to the issues involved which can reasonably be deduced from the evidence. Stated in conformity with the rule just announced, we find in the record substantial evidence that plaintiff first met defendant Mrs. Krumgold at the latter's home July 6, 1940. Upon that occasion plaintiff was introduced to defendant Mrs. Krumgold by the former's daughter who at that time made known her own identity and relationship to plaintiff. Entering defendant's home and after some preliminary conversation about generalities, plaintiff and her daughter commenced to speak about defendant Mrs. Krumgold's contemplated trip and the latter said to plaintiff, “I am glad you will be able to come. I understand your son is to be married tomorrow and I have been wanting to start but I will be willing to wait for a day or so; I am packed up ready to go but I can wait. I had hoped that we could go tomorrow morning but since your son is being married tomorrow we will wait until Tuesday”. Plaintiff thereupon remarked, “That will suit me much better” and inquired “What arrangements are we going to make?” to which defendant Mrs. Krumgold replied, “We will share expenses”. Plaintiff then said, “What do you mean by sharing expenses?” to which Mrs. Krumgold replied, “If you will pay half of the gas and oil”. Plaintiff then said, “That is perfectly satisfactory to me”. There is also testimony in the record that the parties agreed that each would pay for their respective meals and lodging. An agreement was then made that defendant Mrs. Krumgold would drive to plaintiff's house, which she did on July 9th, and the trip was commenced about 5 o'clock that morning. Defendant Mrs. Krumgold was driving the car and when they arrived at Victorville, California, it became necessary to purchase fuel, whereupon plaintiff said to defendant Mrs. Krumgold, “Here is $10; you had the tank all filled when you started and I haven't paid anything toward it so we will take it out of this until my share is paid. Defendant Mrs. Krumgold accepted the $10 and made a notation of its receipt in a little book. When they left Victorville plaintiff drove the car for some two hours and the two women alternated in driving throughout the trip until the time of the accident when defendant Mrs. Krumgold was driving. During the trip both women followed their agreement to pay for their respective meals and lodging except on one occasion at Rawlings, Wyoming, where defendant purchased dinner for plaintiff. An explanation for this departure from their agreement was given when plaintiff testified that defendant insisted upon paying for this meal because on that evening when it was plaintiff's turn to pay for the night's lodging the cost exceeded what they had expended the preceding night.

So far as the purposes of the trip were concerned, it appears that defendant Mrs. Krumgold was going to New York to join her husband and that the object of plaintiff was to visit her mother in Binghampton, New York. Neither plaintiff nor defendant had any business in common with each other nor any common objective other than to reach New York for the respective purposes just narrated.

We deem it unnecessary to here set forth the evidence of occurrences immediately preceding the happening of the accident because the main, if not the sole, question presented to us on this appeal is whether the court erred in holding that under the facts hereinabove set forth appellant was not a passenger for hire but was at most a guest in the automobile.

We shall first give consideration to respondent's contention that this court is without jurisdiction over the subject matter of this action. This claim is based on the fact that the notice of appeal filed by plaintiff states that she appeals “from that portion of the judgment made and entered in the superior court on March 7, 1942 in favor of the defendant and against the plaintiff” while the record definitely shows that the only ruling made by the trial court on or about March 7, 1942, in favor of defendant and against the plaintiff was the ruling denying plaintiff's motion for a new trial as to the first cause of action. While it is true the judgment as to plaintiff's first cause of action was entered January 6, 1942, and not on March 7th as set forth in the notice of appeal, nevertheless there is no showing of prejudice to defendant by reason of the confusion as to dates, and the policy of the law is to liberally construe notices of appeal to the end that appeals may be determined upon their merits rather than by technical objections. In the instant case there is but one judgment in favor of defendant and against plaintiff and that was the judgment rendered January 6th. Such being the case and defendant not claiming any prejudice, it must be held that the inadvertence in the notice of appeal as to the date of the judgment does not invalidate the appeal herein. Chinnis v. Pomona Pump Company, 36 Cal.App.2d 633, 636, 98 P.2d 560.

We come now to a consideration of the main question presented, viz., did the court err in its ruling that as a matter of law plaintiff was not a passenger in the automobile who gave compensation in return for the ride. As was stated by our supreme court in Whitechat v. Guyette, 19 Cal.2d 428, 431, 122 P.2d 47, numerous cases decided since the enactment of the “guest law” in 1929 have enunciated certain general rules which may be used as a guide, but whether the circumstances presented bring the case within the intent and purpose to be accomplished and the evils sought to be remedied by the adoption of the “guest law”; as well as whether the plaintiff was within the language of the statute, is dependent upon the particular facts involved in the case under consideration. In the same case it is also pointed out that while for the purpose of distinguishing a person carried for hire or reward from one transported gratuitously the terms “passenger” and “guest” have been conveniently used, the courts should, however, chiefly concern themselves with the meaning of the phrase “without giving compensation” as that term is used in section 403 of the Vehicle Code, St.1935, p. 154, rather than with a definition of the term “guest”. We, therefore, undertake a consideration of the question whether the facts and circumstances here in evidence warranted the trial court in concluding as a matter of law that plaintiff accompanied defendant in the latter's automobile “without giving compensation” in return for such transportation. Here we are confronted with a factual situation wherein the brother of the defendant, who was a friend of plaintiff's daughter, telephoned the latter that his sister was going on a trip to New York, and in the course of such conversation plaintiff's daughter mentioned that her mother was desirous of making a similar trip. Defendant's brother then said “Well, maybe some arrangements could be made”, and plaintiff's daughter then arranged with defendant's brother to call on his sister the following morning. Upon that occasion, as heretofore set forth in this opinion, plaintiff and her daughter did call on defendant at which time the latter expressed herself as pleased at the prospect of plaintiff accompanying her on the trip. To an inquiry by plaintiff as to “What arrangements are we going to make?” defendant replied, “We will share expenses”. Pressed for an explanation as to what defendant meant by “sharing expenses” the latter replied, “If you will pay half of the gas and oil”. To all intents and purposes this was the policy pursued on the trip. In view of the respective objectives of plaintiff and defendant as disclosed by the evidence, it can not be said that as between them, the trip was an integral part of a business venture for their mutual advantage. As we view the evidence in the case at bar, the relationship between plaintiff and defendant can be characterized as one of a social nature similar to that existing in the case of McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909, and in Rogers v. Vreeland, 16 Cal.App.2d 364, 60 P.2d 585, wherein the parties were on pleasure trips. Judging the facts of the instant case in the light of the holding of our supreme court in the cases of Whitechat v. Guyette, supra, and Druzanich v. Criley, 19 Cal.2d 439, 122 P.2d 53, we are persuaded that the benefit received by defendant from plaintiff does not as a matter of law measure up to the sufficiency required by section 403 of the Vehicle Code in order to be termed “compensation” within the meaning of such section. In the Whitechat v. Guyette case, supra, it was held that because of a conflict in the evidence concerning a cash payment to the defendant driver and the purpose and intent of such payment, it was within the province of the jury to determine whether such payment was merely a payment to share expenses or was in fact compensation.

However, in the instant case we are impressed that different minds could not reasonably differ upon that question and that the testimony herein points unerringly to the fact that, as a matter of law, the promised benefit from plaintiff to defendant amounted merely to an agreement or promise to share expenses. The case of Druzanich v. Criley, supra, is equally and as readily distinguishable from the case with which we are here concerned. In that case it was held that the conversations prior to commencement of the trip showed that the offer to transport plaintiff was conditioned upon the latter sharing in the driving and that this “was just as much payment for transportation as a railroad fare”; that plaintiff's promise was the “special tangible benefit” which was “the motivating influence for furnishing the transportation” referred to in the McCann case, supra. In the case before us it is true that both plaintiff and defendant would be benefited socially by taking the trip to New York to visit their respective relatives, but the presence of one in New York was not necessary for the enjoyment of the benefits of such eastern visit contemplated by the other. Whatever sharing in the driving occurred on the trip, in the case at bar, can be said at most to amount only to a “courtesy of the road”, for the record shows without contradiction that the offer of transportation made to plaintiff was not conditioned upon her sharing in the driving. It must, therefore, be held as a matter of law under the decision in McCann v. Hoffman, supra, that plaintiff was a “guest” and not a “passenger” and that the consideration or benefit passing from plaintiff to defendant was merely a promise to share expenses and not compensation.

For the foregoing reasons the judgment entered herein on January 6, 1942, is affirmed.

I dissent.

Not only am I of the opinion that appellant was not a guest within the meaning of section 403 of the Motor Vehicle Code but I am also of the opinion that the decisions relied on in the prevailing opinion are the product of falacious reasoning as a result of which, by construction, the comprehensive purpose of section 403 is defeated.

For example, in Whitechat v. Guyette, 19 Cal.2d 428, 122 P.2d 47, 49, the court has placed special emphasis on the meaning of the word “compensation” and in doing so appears to have disregarded the fact that the word “compensation” has not “acquired a peculiar and appropriate meaning in law”, that it is not a technical word and hence should be “construed according to the context and the approved usage of the language”. (Sec. 16, Code Civ.Proc.) In that connection it should be noted that there is nothing in the context that gives to the term “compensation” any special significance. On the contrary, it clearly appears to have been used in its ordinary acceptation. Nevertheless, in the Whitechat case appears the following: “As a starting point reference might be made to a situation in which a person driving along a highway picks up a hitchhiker. It is clear that the pleasure derived from the doing of such an act of kindness is not a benefit sufficient to be considered compensation, and, in fact, the only tangible benefit is enjoyed by the hitchhiker. Nor is there any question of compensation involved if a driver of a car takes another to some social event which both desire to attend or to some other point of common destination solely for the pleasure deriver from the taking. It is equally clear that the benefits of hospitality, companionship or goodfellowship accruing to the owner or operator of an automobile as the result of a simple pleasure trip are not benefits that may be considered compensation. Even if there is something tangible in the way of a contribution of money from the occupant to the driver, a sharing of expenses, or even in some cases full payment of gas and oil by the occupant, there is no benefit sufcient to be termed compensation if the trip is of a purely social nature.”

It is at this point that the reasoning of the Supreme Court, in my opinion, went astray. By basing the meaning and interpretatoin of “compensation” on the distinction between a trip of a purely social nature or for pleasure and a trip not for such a purpose, a false premise was established. There is nothing either in the context of section 403 or in the meaning of the term “compensation” that warrants such an assumption. The result is an amendment by judicial interpretation that effectively limits the scope of the section.

And why should such a distinction be resorted to? In terms of dollars and cents, is money any the less compensation because it is spent for pleasure or for purposes of a social nature? It is noteworthy in this connection that, as a matter of common knowledge, great stadiums have been erected throughout the country exclusively for pleasure purposes. The United States maintains its national parks for such purposes. Indeed virtually every man, woman and child in the country spends money for pleasure and social purposes. How then can it be argued successfully that money so spent is not “compensation”? If this is true, then how can the legislature have intended to give any different meaning to the word “compensation” than the meaning accepted in the “approved usage of the language”?

In order to determine the nature of compensation as contemplated by the statute, the more appropriate basis for deduction would appear to be that employed in determining the nature of consideration for a contract. It is reasonable to assume that when the statute speaks of compensation, the reference is to a benefit conferred in the nature of a payment of money, or its equivalent. For example, if two persons decide to take a pleasure trip in the car of one, the other to pay half the expenses, a benefit has very definitely been conferred upon the owner of the car, in the nature of compensation for the use of his car, the wear and tear thereon and the consumption of gas and oil. Moreover, the transaction amounts to a definite contract or agreement on the part of the guest to pay one half the expenses of the trip if the car owner will drive his car to the desired destination. To proceed a step further, if in return for being driven to San Diego on a pleasure trip one week, the quest premises to drive the car owner to Santa Barbara in the guest's car the next week, a benefit has been conferred and the car owner has been compensated in no less degree than if he had been paid for driving the guest to San Diego; and the transaction again amounts to a contract.

Section 403 of the Vehicle Code says nothing about the nature of the ride being taken by the guest. The section merely speaks of the giving of compensation for the ride. It cannot be successfully or validly argued that the compensation referred to in the statute is different from the type of benefit which constitutes good consideration for a contract; nor can it be any more successfully argued that a contract is any less a contract because the purpose thereof happens to be one of pleasure. Rather than make the determination of the question of whether compensation was given for the ride depend upon whether the ride was for social or business purposes, a sounder basis for such determination appears to lie in ascertaining whether the benefit, if any, conferred in exchange for the ride was such as to constitute good consideration for a contract to undertake the trip in question. Such construction does no violence to the “approved usage of the language” and leaves to the legislature the determination of limiting or extending the operation of the statute by amendment, where, under the law, it properly belongs.

WHITE, Justice.

YORK, P. J., concurs.

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