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

MALLOY v. FONG et al. (two cases).

Civ. 13539, 13583.

Decided: July 07, 1950

Healy & Walcom, M. Mitchell Bourquin, Jacobs, Blanckenburg & May, all of San Francisco, for appellant. Clarence A. Linn, San Francisco, Robert W. Macdonald, Oakland, Dan Hadsell, San Francisco, Roscoe D. Jones, Oakland, Raymond L. Hanson, San Francisco, of counsel, for respondent Presbytery of San Francisco. Cooley, Crowley & Gaither, San Francisco, Cal., for respondent Antisdale.

The plaintiff recovered a verdict for $41,500 against the defendants Fong, Antisdale and The Presbytery of San Francisco, each of whom moved for judgment notwithstanding the verdict. The motions of Fong and Antisdale were denied and that of The Presbytery was granted. Respondent Antisdale's motion for a new trial was granted. These appeals are from the latter order and from that part of the judgment which denies a recovery as against The Presbytery. Fong did not appeal.

During the summer of 1943 the San Mateo Presbyterian Church, of which Antisdale was the pastor, conducted a daily vacation bible school at its church. Antisdale was ill and away for a few days and in his absence Fong, a 19 year old divinity student, volunteered to teach at the school. Appellant, a lad of 13, was attending the school, and on July 1, 1943 a physical education period was held during which some of the boys and girls in attendance were conveyed in two automobiles from the church to a nearby playground. Antisdale had returned only that morning, and he drove his Chevrolet coach while Fong drove a Ford station wagon. Appellant road on the left running board of Fong's station wagon, another boy rode on its right running board, while on the Chevrolet one boy rode on the left and one on the right running board.

Twenty-eighth Avenue in San Mateo runs in an easterly and westerly direction, with one lane for vehicular traffic in each direction; Isabelle Avenue intersects 28th Avenue at approximately a right angle. Defendant Eleanor Holmes was driving a Chevrolet sedan in a northerly direction on Isabelle Avenue, and at the intersection her Chevrolet collided with Fong's car. Appellant, on its left running board, lost his left leg below the knee in the accident and sustained injuries to his right leg as well.

Negligence of the three drivers was charged, but by its verdict the jury exonerated defendant Eleanor Holmes.

In the first count the complaint alleges that Fong was the agent of Antisdale and The Presbytery, acting within the scope of his agency and employment; that appellant was a passenger in the Fong car and that his injuries were the proximate result of the negligence of defendants Fong and Holmes. The second count pleads that Antisdale was the agent of The Presbytery, acting within the scope of his agency and employment, and that he negligently failed to give way to the right to permit the Fong car to pass, but increased his speed with the result that both the Fong and Antisdale cars ran abreast into the intersection, causing and precipitating the collision between the Fong and Holmes cars. It also charged negligence of Fong in attempting to pass the Antisdale car at and near the intersection.

Antisdale answered, denying negligence and pleading that the proximate cause of the accident was the negligence of defendant Holmes, and pleading appellant's contributory negligence as well.

Fong by a separate answer denied negligence, alleged that the proximate cause of the accident was the negligence of defendant Holmes, and pleaded appellant's contributory negligence.

The Presbytery by a separate answer denied that Fong was the agent of Antisdale, that either of them was its agent, or that appellant was Fong's passenger. It pleaded three defenses (1) that appellant was guilty of contributory negligence, (2) that the proximate cause of the accident was defendant Holmes' negligence, and (3) that it is engaged solely in the propagation of religion and ‘does not contemplate the distribution of gains, profits or dividends to its members' and that it has always ‘exercised due and reasonable care in the selection of its servants and agents.’

By amendment a third count was added to the complaint which alleged that Fong and Antisdale were instructors in the school attended by appellant and other children, and had charge and control of them; that in such capacity they transported the children from the classroom to the playground for recreational and educational activities, and in so doing negligently failed to exercise proper and adequate care, custody and control over them, and permitted appellant to ride on the running board knowing that it was hazardous and dangerous. By stipulation these allegations were deemed denied. The amendment added a prayer for special damages of $3823.69 bringing the demand up to $78,823.69.

The Presbytery of San Francisco is a defendant (and respondent) is this case. The San Mateo Presbyterian Church is not a party. Respondent Antisdale, the pastor of the latter organization, was joined as a defendant under allegations of his own negligence, and as the agent of The Presbytery of San Francisco under the doctrine of respondeat superior.

The relationship of Fong and Antisdale toward each other, toward the San Mateo Presbyterian Church and toward The Presbytery are important factors in this case and no statement of facts would be complete without a rather full summary of those relationships.

The establishing of the San Mateo Presbyterian Church and the appointment of respondent Antisdale as its pastor came about as follows: three Presbyterian laymen, a banker, a lawyer and a business man, were conducting a small Sunday school in San Mateo. Respondent Antisdale was then a student in the San Francisco Theological Seminary at San Anselmo, from which he later graduated, and these men asked him to come and help them out, which he did. While he was so assisting, the group organized themselves into a Presbyterian Church and he later became its minister. The chronology is about as follows: on July 24, 1942, at a stated meeting of The Presbytery the request of the Church Extension Board was presented for the organization of the San Mateo Presbyterian Church for which a petition containing 70 names had been presented. The church or congregation at San Mateo was organized under ecclesiastical law in August, 1942. By a writing dated March 14, 1943 addressed to Antisdale ‘The congregation of San Mateo Presbyterian Church’ called him ‘to undertake the pastorial office in said congregation’ at $1200 yearly, binding themselves in addition to pay in to the Board of Pensions an amount equal to 8% of his yearly salary. It was signed by 8 persons who had been appointed for the purpose by the congregation. Dr. Smith, who was at the time executive secretary of The Presbytery, was moderator of the meeting of the congregation held on March 14, 1943, for the purpose of electing a pastor, and he certified that Antisdale's election was by unanimous vote of the congregation. He acted as moderator at the meeting because there was then no local church organization and no pastor. The written ‘call’ was signed after the election had been held. The minutes of The Presbytery show that on April 11, 1943 an adjourned meeting of The Presbytery of San Francisco convened at the San Mateo Presbyterian Church and voted to proceed with ordination and installation. Respondent Antisdale was then ordained as a Presbyterian minister and was installed as pastor of the San Mateo church. His ordination was ‘for life and for good behavior’ according to church law; his ‘call’ to the San Mateo pastorate was for an indefinite period. The fact that he was ordained as a minister of the gospel and installed in his first pastorate at the same ceremony seems to be only a coincidence.

A lease had been taken on premises on 25th Avenue near El Camino Real on February 15, 1942, at a yearly rental of $690, and this place was in use as a temporary church and shool at the time of the accident. It was stipulated that the lease was taken in the name of The Presbytery of San Francisco (the San Mateo Church was not organized as such until August of 1942) and further that the rent was paid for the first 3 or 4 months after the date of the lease, by the War Emergency Fund of the Presbyterian Church in the United States of America, which has its office in New York, and that thereafter it was paid by the local organization, the San Mateo Presbyterian Church which occupied the leased property; further, that the San Mateo Church was subsidized by the War Emergency Fund to the amount of $50 a month ‘for all the realty with which this action is concerned.’

From the foregoing it appears that Antisdale was ‘called’ and employed as pastor by the congregation and installed by The Presbytery; that his salary was paid by the congregation; that the rental of the church premises was paid by the congregation, aided apparently by a subsidy from the War Emergency Fund of the national church organization.

The process by which a Presbyterian minister becomes the pastor of a particular church is illustrated by what was done in this case. He must be ‘called’ by the congregation but he must be installed as pastor by the presbytery having jurisdiction, which means that before installing him it must first approve him. Its approval goes to character, fitness, education, and to the terms of his compensation, to make sure that it is proper in view of the size of the congregation and other circumstances.

So much for the process by which a pastor is employed. The next question is, How is he separated or discharged as pastor? If there is a complaint against him it must be lodged by the congregation, or by those in authority as the elders, with whatever presbytery has jurisdiction, and the charges are then heard and tried by the presbytery sitting as a court. If a member or group of a congregation has a complaint against a pastor and they cannot get the elders to take action, such individual member or such group may present it directly to the presbytery against both the pastor and the elders, and the judicial powers of the presbytery are then brought into play. The presbytery cannot and does not initiate any charges against a minister; it simply acts judicially and tries him under ecclesiastical law on such charges as are lodged by the congregation over which he presides.

A pastor's connection may, of course, terminate by his being called to another church. It was so in this case. After serving for some time in the San Mateo Church Antisdale received a call from a Los Angeles church. He had to get the permission of The Presbytery of San Francisco to accept it, and this he got. It is church law that a minister cannot change from one church to another, either within the same presbytery's jurisdiction, or outside it, without the permission of the presbytery in which he is then serving.

Doctor Edward A. Wicher, a retired Presbyterian minister, but at the time of the trial the stated clerk of The Presbytery of San Francisco testified at considerable length as to the organization and functioning of the Presbyterian Church as an ecclesiastical organization. He testified that ‘The Constitution of the Presbyterian Church’ was the official and authoritative document. He testified that The Presbytery of San Francisco, like other presbyteries has great power and control over the ministers within its confines and such ministers are members of it, and a minister cannot transfer or be ‘translated’ from one church to another without a ‘call’ from the new church plus the permission of the presbytery within which he is then serving. He testified that when a ‘mission’ becomes a ‘session’ this control ceases. In this case, however, the accident happened while the San Mateo organization still had ‘mission’ status.

It was stipulated that The Presbytery of San Francisco held title to the land on which the present church was built, in trust for the San Mateo Church which was incorporated under state law on March 3, 1945, and then conveyed it to the San Mateo church.

Defendant Fong was studying in Los Angeles to be a Presbyterian minister, and came to San Mateo to spend his summer vacation staying with a retired Presbyterian minister living there, named Jones. This retired minister was a close friend and the guardian of Fong, to whom he gave the use of his Ford station wagon.

The summer school was sponsored by the parents, all of whom were members of the San Mateo Presbyterian church, and it was to some extent staffed by the mothers who volunteered their services as teachers. When respondent Antisdale was taken sick Fong volunteered to assist at the summer school, and he was there on the morning of July 1 when respondent Antisdale returned to his pastoral duties. And so it happened that when the time came for the physical exercise period both Antisdale's car and Fong's borrowed station wagon were available to take the children to the recreation grounds. As they were preparing to leave, Antisdale saw the youngsters climbing on the running boards and ordered them off, but some returned thereto despite his orders.

The appeal based on the granting of The Presbytery's motion for judgment notwithstanding the verdict.

It is first urged by appellant that in dealing with this motion the evidence must be viewed in the light most favorable to the verdict. That is of course true.

The Presbytery quotes the grounds on which it moved for a directed verdict and for judgment notwithstanding the verdict. They were, among others:

‘1. That a charitable organization is not liable for the torts of its agent unless it has been negligent in the selection of such agent.

‘2. There was no proof that either Antisdale or Fong were the agents of the Presbytery.’

That Fong was not the agent of either Antisdale or The Presbytery is clearly established by the undisputed evidence in this case.

The Ford station wagon which Fong drove did not belong to The Presbytery of San Francisco or to the San Mateo Presbyterian Church, and neither organization had any direction or control over it, nor had Antisdale. It belonged to the retired minister with whom Fong was visiting, who had no connection with the Church except perhaps as a member of its congregation, who had given Fong permission to use it. Rev. Mr. Jones, the owner of the station wagon, was not joined as a defendant.

Fong was not known, as far as the record shows, by The Presbytery of San Francisco or any of its officials. He was not known, as far as the record shows, to respondent Antisdale before the morning in question when the latter returned to his pastoral duties, and there is no showing that Anstidale and Fong had any discussion or understanding that morning before the accident. Reverend Mr. Jones' generosity had supplied Fong with the station wagon, and Fong, in his generosity, had volunteered the station wagon and his own services. There was nothing in the nature of a ‘hiring’ or ‘employing’ of Fong by Antisdale and none by The Presbytery of San Francisco. Any such hiring or employing of Fong obviously would have had to be through Antisdale, or not at all. Fong was as much a volunteer prompted by charitable impulses as was the plaintiff in Edwards v. Hollywood Canteen, 27 Cal.2d 802, 167 P.2d 729. He might, in fact, have been a very officious person, but officious conduct (if any) cannot create an agency His help and assistance was as gratuitous, and as unlike ‘a relationship between two parties by which one has the legal right to direct the activities of the other and the latter the legal duty to submit to such direction’, Stoddard v. Fiske, 35 Cal.App. 607, 609, 170 P. 663, 664, as was the case in Edwards v. Freeman, 34 Cal.2d 589, 212 P.2d 883.

A judgment for $41,500 stands against Fong in this case, and he has not appealed. But whether it be assumed that the jury found him guilty of negligence or of wilful misconduct neither his negligence nor wilful misconduct can be legally charged or attributed to The Presbytery of San Francisco, either directly or through Antisdale, for the reason that the undisputed facts show that no relationship existed of principal and agent, master and servant or employer and employee between Fong and The Presbytery or Fong and Antisdale. They show Fong to be simply a well-intentioned volunteer and a gratuitous helper, whose status was no different from that of a mother of one of the children had she driven the family automobile to help in taking the children to the recreation park.

To again quote from Stoddard v. Fiske, supra, quoted approvingly in Edwards v. Freeman, supra: ‘If Fiske, after undertaking his mission, had abandoned it and left his friend in the lurch, he would have been guilty of no breach of legal duty * * *.’ So here, if Fong, after starting for the recreation grounds, had decided to abandon the trip and had let the children off the borrowed station wagon to go on foot or to return to the church or to their homes ‘he would have been guilty of no breach of legal duty.’ Neither The Presbytery nor Antisdale could have complained or have ordered him to proceed, since neither had any right of control over him.

For the reasons just given we are satisfied that the trial court properly held as a matter of law that there was no agency relation between Fong and The Presbytery either directly, or indirectly by reason of any intermediate sub-agency between Antisdale and Fong.

Antisdale, however, is charged with negligence on his own account and as an independent actor. The consideration of this phase of the case necessarily has to assume—for the purpose of the discussion—the negligence of Antisdale. And it has to assume (for the same limited purposes) that Antisdale was an agent of The Presbytery.

Assuming such negligence and agency, we are satisfied that the case is squarely within the doctrine of Humphreys v. San Francisco Area Council, Boy Scouts of America, 22 Cal.2d 436, 139 P.2d 941. In that case the court found that the driver of the truck on which the Humphreys boy was killed, was negligent. Here we are assuming (for limited purposes) that Antisdale was negligent. As in the Humphreys case this action is against the organization itself, based on the claimed negligence of Fong or Antisdale or both under the doctrine of respondeat superior.

In the first part of this discussion we have shown that Fong was not an agent or employee in any sense of those words, but merely a volunteer. In that respect the instant case is simpler than the Humphreys case where, admittedly, the truck was driven by an employee. If, under the doctrine of the Humphreys case the Boy Scout organization could not be held liable for the negligence of one of its employees, certainly this church organization can not be held liable for the tort of one who was not its employee or agent but merely a volunteer, gratuitously assisting in a good work.

With respect to Antisdale: if he was negligent (as we are assuming) the situation is no different from that in the Humphreys case where the driver's negligence was found by the court.

The difference between the Boy Scout organization and a business enterprise is pointed out at 22 Cal.2d page 443, 139 P.2d page 945, where the court says ‘* * * we must keep in mind that * * * the defendant council is a charitable corporation ‘not conducted for any profit whatsoever’ and that in none of its operations ‘is it in anywise akin to a business enterprise.’ This organization is engaged in the spiritual, physical and mental development of the youth of America.' All of that can certainly be said with at least equal force with respect to the Presbyterian Church organization. We see no distinction whatever between the two cases.

Notwithstanding the Humphreys case was decided after the Silva and England cases, appellant contends that the case of Silva v. Providence Hospital, 14 Cal.2d 762, 97 P.2d 798, holds ‘that a charitable organization is liable in the same manner and to the same extent for the negligence of its employees as other persons or corporations.’ That, however, is an open question. The Supreme Court while definitely settling therein and in the England case [England v. Hospital of Good Samaritan], 14 Cal.2d 791, 97 P.2d 813, the rights of a paying patient in a charity hospital, has never passed upon the right of a plaintiff who is the recipient of a church's benefactions to sue his benefactor. The closest it ever came to the question is when it denied a hearing, after decision in the District Court of Appeal of the Bardinelli case [Bardinelli v. Church of All Nations], 23 Cal.App.2d 713, 715, 73 P.2d 1264, a case on all fours with this one.

Appellant contends also that the Silva case overrules the Bardinelli case. The Silva opinion mentions it, 14 Cal.2d at page 769, 97 P.2d 798, as one of the few California cases involving charities other than hospitals, but it does not overrule it, since the only point presented for decision in the Silva case had to do with the rights of a paying patient in a ‘charitable’ hospital, not with those of the recipient of a benefaction flowing from a charity having no business side at all.

In Edwards v. Hollywood Canteen, 27 Cal.2d 802, 812, 167 P.2d 729, 734, the court said: ‘Defendant is not exempt from liability on the ground that it is a charitable organization. The authorities in other jurisdictions are divided on the question of whether a recipient of charitable benefits may recover for negligence by the charitable organization, but by the great weight of authority, and clearly the rule in California, persons who are not recipients of the charity, such as employees and strangers, may maintain an action based on negligence. See cases collected in 3 Scott on Trusts (1939), § 402; 14 A.L.R. 576, 581, 585; O'Connor v. Boulder Colorado Sanitarium Ass'n, 105 Colo. 259, 96 P.2d 835, 133 A.L.R. 821; Silva v. Providence Hospital, 14 Cal.2d 762, 772, 773, 97 P.2d 798; Phoenix Assur. Co. v. Salvation Army, 83 Cal.App. 455, 256 P. 1106. In the Silva case it was held that a charitable organization must respond in damages to a paying patient whom it injures, the court stating that the policy of the law requiring individuals to be just before generous is applicable to charitable corporations. 14 Cal.2d at page 775, 97 P.2d 798. It is obvious that the plaintiff in this case was not a recipient of charitable benefits and, therefore, is not barred by any rule of exemption.’ It will be observed that the court there was careful to state just what the Silva case held and to indicate that Silva did not pass upon the rights of a recipient of charitable benefits.

We are satisfied that, assuming the negligence of Antisdale (for the purpose of the discussion only), The Presbytery cannot be held liable under the doctrine of respondeat superior, and we believe such holding finds full support in the Humphreys and Bardinelli cases.

The Humphreys case would have no application here had there been in this record the following combination of circumstances: If an agency relationship had been made out between The Presbytery and Fong and he or The Presbytery had received compensation for appellant's ride. But neither the ‘if’ condition nor the ‘and’ condition is present and both would have to be. There was no agency, and there was no compensation.

The reasons why there was no agency have been already developed under the first heading.

The only possible ‘compensation’ argument which has been or can be made on this record, is based on the envelope collection.

Antisdale was cross-examined respecting this, and testified that a collection was taken up once a week among the children ‘to defray the expenses incidental to the running of the school.’ There was no stipulated fee or tuition—‘whatever they wanted to donate.’

‘Q. But each of the children contributed something to the upkeep of the school? * * * A. I don't know.

‘Q. Anyway, you solicited contributions? A. No.

‘Q. At any rate, you passed the hat around? A. No.

‘Q. What mode or manner did you take, to take up this collection? A. Envelopes were given out and if they wanted to bring it in, they could.

‘Q. To each of the children? A. Yes.

‘Q. And the children would take the envelopes home and return with them? A. That was the idea, yes.

‘The Court: I hope there was no way of identifying who made the several contributions. A. There wasn't.’

Appellant testified:

‘Q. Was any envelope or anything else handed to you, as a pupil of the school, for the purpose of making a payment to defray the expenses of running the school?

‘Mr. Linn: That calls for the conclusion of the witness, making a payment to defray expenses.

‘Mr. Healy: I will withdraw it. I think the other man said that was what it was for.

‘Q. Was an envelope given to you for the purpose of making some sort of payment or contribution? A. Yes.

‘Q. To the other children also? A. Yes, they are handed out to everybody.

‘Q. When with relation to the day of the accident was the envelope handed to you? A. I don't remember that.

‘Q. About when? A. I think it was the first day of the week.

‘Q. It was some few days before the day of the accident? A. Yes.

‘Q. What did you do with the envelope? A. Took them home and filled them and brought them back.

‘Q. Did you get the money from your father and mother? A. Yes.

‘Q. Do you recall how much money was put in the envelope? A. No.

‘Q. There was some money put in it, though? A. Yes.

‘Q. You took the envelope with the money back to the school? A. Yes.

‘Q. And handed it to whom, do you remember? A. I think they are put in a pile all together and somebody collected them.

‘Q. Some one of the teachers? A. Yes.’

Neither of appellant's parents was called to testify respecting the size of their envelope donations, see § 1963, subd. 6, Code Civ.Proc., a matter exclusively within their knowledge. It is apparent from the testimony of both Antisdale and appellant that there would be no way for the church people to know the amount.

If the donations were, as Antisdale testified, ‘to defray the expenses incidental to the running of the school’ Fong's car and Fong's services could not have been among such expenses since both were donated and gratuitous just as were the services of the mothers who taught and who brought along their own family cars to haul the children.

Moreover, no parallel can be drawn between a voluntary envelope donation made by a member of the congregation, whatever the size of the contribution (in this instance wholly undeterminable), and ‘compensation’ such as that contemplated by § 403, Vehicle Code, or the guest cases. The case of Smith v. Fall River Joint Union High School Dist., 118 Cal.App. 673, 5 P.2d 930, is cited by appellant, but there the driver of the school bus was compensated by the school district out of money derived from taxes.

The Humphreys case, in a passage already quoted, emphasizes the business factor when it distinguishes a charitable organization from an ordinary business enterprise. In the Humphreys case there was a contribution to the over-all cause (so to speak) by the Humphreys boy, not of money, but of his own services as a junior scout master who also had charge of the fountain at the camp, while there was no comparable contribution here since appellant did nothing toward helping in the church's or school's ministrations to the children. He was himself a recipient and beneficiary of them.

We are satisfied that in no sense can the envelope donations of appellant's parents—treating them of course as made on their son's behalf—be considered as ‘compensation’ within the meaning of the guest law or the cases decided under it.

The appeal from the order granting respondent Antisdale's motion for a new trial.

The first count of the complaint is directed primarily against Fong, but it brings Antisdale in as one of Fong's principals. That count charges concurrent negligence to Fong and defendant Eleanor Holmes.

The second count again brings Antisdale in as one of Fong's principals, but it also alleges negligence on Antisdale's own part by failing to give way to the right, and increasing his speed, thereby causing the collision; also Fong's negligence.

The third count charges negligence to both Fong and Antisdale in the exercise of their control as teachers.

With such issues in the case as the claimed Antisdale-Fong agency relation, the position of Antisdale wholly aside of course from the negligence charged against him, is important and he now justifies the granting of a new trial on the basis that there was error in the instructions, which the trial judge must have recognized by granting the motion.

In the first place appellant points to the rule that under § 4 1/212 of art. VI of the constitution a trial court in passing upon such a motion ‘is as firmly bound by this constitutional provision as is an appellate court’, Middleton v. California Street Cable R. Co., 73 Cal.App.2d 641, 646, 67 P.2d 239, 242, citing Nance v. Fresno City Lines, 44 Cal.App.2d 868, 872, 873, 113 P.2d 244, and to the further rule that the trial court is ‘in a much better position to judge of the prejudicial effect of the instruction’ than is an appellate court from a reading of the record. Bieser v. Davies, 119 Cal.App. 659, 663, 7 P.2d 388, 389. Respondent points also to the rule ‘that a stronger showing is required to justify interference with an order granting a new trial than one which has been denied.’ Abercrombie v. Thomsen, 59 Cal.App.2d 331, 337, 138 P.2d 701, 704. There must be ‘a clear and affirmative showing of a gross, manifest or unmistakable abuse of discretion.’ (Id.)

In discussing the appeal from the judgment we held that as a matter of law no agency relation existed between The Presbytery and Fong or between Antisdale and Fong, and cited Edwards v. Freeman, supra. But instead of taking the agency question away from the jury because it was a question of law the court submitted it to them, under the following instructions:

‘You are instructed that if you find that at the time of the accident * * * Fong was acting on behalf of and as the agent and servant of * * * Antisdale and within the course and scope of his agency and employment, that any act or omission upon the part of * * * Fong is imputed to and in law is the act of omission of * * * Antisdale.

‘Therefore, if you find that * * * Fong failed to use ordinary care and caution in the operation of the station wagon that he was driving at the time of this accident while engaged in the course and scope of his agency and employment of * * * Antisdale, such failure is in law the negligence of * * * Antisdale, and if such negligence proximately contributed to the injuries of the plaintiff * * * your verdict must be in favor of the plaintiff, provided that plaintiff * * * was exercising ordinary care for his own safety at the time of the accident.

‘You are instructed that * * * Fong was at all times, under the law, required to drive the station wagon in a careful and prudent manner, having due regard for the traffic on and the surface and width of the highway, and in no event was he permitted to drive at a speed or in a manner which was likely to endanger the safety of persons or property. I instruct you that if * * * Fong failed to so drive the station wagon, he was guilty of negligence and such negligence is imputed to and in law is the negligence of * * * Antisdale, if at the time he was driving the station wagon, he was driving it on behalf of and as the agent and servant of * * * Antisdale, within the course and scope of his agency and employment.’

The recent case of Edwards v. Freeman, 34 Cal.2d 589, 212 P.2d 883, 886, supra, is directly in point. There an agency relationship between a mother and son was sought to be established for the purpose of imputing to the mother the negligence of the son in driving the car in which she was riding. The mother who had to go into town asked her son, who also had to go into town, to take her along and he did so. In a collision she was injured and sued the driver of the other vehicle. The court held on appeal, ‘Upon the record here, where the evidence shows no more than a friendly or filial service, gratuitously rendered, it was error to submit the issue of imputed negligence to the jury and the error was clearly prejudicial because the inadequate and confusing instruction on the subject of agency at the least permitted the jury to find such a relation (if it be not understood as directly suggesting such a conclusion) from the mere ‘instance and request’ of plaintiff [citation]'.

Edwards v. Freeman was reversed on an appeal from a judgment in favor of the defendant. The same question is presented to us on an appeal from an order granting a new trial, which seems to indicate that the trial judge discovered his error in submitting this agency question to the jury and sought to accomplish its rectification without an appeal. Edwards v. Freeman had not been decided by the Supreme Court when he ruled, but that case only restated the rule announced earlier in such cases as Stoddard v. Fiske, 35 Cal.App. 607, 170 P. 663, supra, which it cites.

The agency instructions which we have quoted were such as are customarily given in negligence cases. That should be borne in mind in the discussion of the next subject.

In appellant's closing brief his counsel say: ‘While no issue as to either the guest law nor wilful misconduct was framed by the pleadings, yet the evidence * * * was so flagrant that it did in fact amount to wilful misconduct, thereby creating a new issue at the trial which warranted the court in giving * * * instructions to the jury’ on those subjects.

The fact, thus conceded, that those issues were not tendered by the plaintiff's pleading might well have led to a confusion in the instructions which the court felt duty-bound to rectify by granting the new trial. Despite the admitted absence of issues on wilful misconduct the court instructed the jury that ‘A basic issue to be determined by you in this case is whether plaintiff * * * was a guest of the defendant * * * Fong at the time of the accident in question.’

The jury was given six or seven instructions on the subject of wilful misconduct in addition to those on the subject of negligence, and the court in granting the new trial doubtless concluded that a conflict arose from this treatment of the subject. The court, moreover, in the wilful misconduct instructions failed to give § 403 of the Vehicle Code either literally or in substance and effect.

We are satisfied that there was no abuse of discretion in the granting of the new trial.

The judgment appealed from is affirmed and the order appealed from is affirmed.

I feel compelled to dissent from the portion of the opinion which holds that the recipient of charitable benefits cannot recover for the negligence of the charitable organization. As I read Edwards v. Hollywood Canteen, 27 Cal.2d 802, 167 P.2d 729, that question is still an open one in this state. The Supreme Court was careful to say in that case, 27 Cal.2d at page 812, 167 P.2d at page 734: ‘The authorities in other jurisdictions are divided on the question of whether a recipient of charitable benefits may recover for negligence by the charitable organization * * *.’ It was apparently equally careful not to state its position on this precise question. The point was not decided in Humphreys v. San Francisco Area Council, 22 Cal.2d 436, 139 P.2d 941. The only question considered in the Humphreys case was whether the evidence supported the finding that the deceased boy was a guest in the automobile and not a passenger at the time of his death. The court said in that case, 22 Cal.2d at page 443, 139 P.2d at page 945: ‘The charitable functions of defendant council are considered, of course, only in connection with the nature of the relationship existing between it and the scouts attending Camp Lilienthal as one of the circumstances tending to show that the privileges accorded staff members might reasonably be regarded as gratuities rather than something bought and paid for.’

Because the Supreme Court has not yet come to grips with this precise question since the field was rendered fluid in this jurisdiction by its decisions in Silva v. Providence Hospital of Oakland, 14 Cal.2d 762, 97 P.2d 798, and England v. Hospital of Good Samaritan, 14 Cal.2d 791, 97 P.2d 813, I feel free to make the choice that appeals to me as most reasonable. Every criticism of the various reasons given by courts for the exemption of charitable organizations from liability for the negligence of their employees found in Silva v. Providence Hospital of Oakland, supra, commencing at page 770 and ending with the quotation from Harper on The Law of Torts at pages 775–776 of 14 Cal.2d, at pages 802, to 805 of 97 P.2d, is just as valid where a recipient of the charity is the plaintiff as where the plaintiff stands in some other relation. To quote a sentence of Professor Harper's from that opinion: ‘To require an injured individual to forego compensation for harm when he is otherwise entitled thereto, because the injury was committed by the servants of a charity, is to require him to make an unreasonable contribution to the charity, against his will, and a rule of law imposing such burdens can not be regarded as socially desirable nor consistent with sound policy.’

The servants of Light should be more righteous than the servants of Mammon and it is a calculated and calculating charity that requires as a quid pro quo for its pittance of beneficence that the recipient may go maimed for life by its negligence without legal recourse. Unless the Supreme Court tells me in plain words that this is the controlling rule of law for California, I will believe otherwise.

Without unduly prolonging this dissent reference will be made to the late Justice Rutledge's scholarly and comprehensive treatment of the entire subject in President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810. With his analysis and conclusion I am in complete agreement.

The question whether plaintiff was a guest in Fong's automobile under the meaning of the Motor Vehicle Act can have no bearing on the possible liability of the Presbytery. If he was Fong's guest that could not make him the Presbytery's guest since we have held that Fong was not the servant or agent of the Presbytery. If Antisdale's negligence, while acting as a servant of the Presbytery, was a proximate cause of plaintiff's injuries it could be no defense to the Presbytery that plaintiff was riding as Fong's guest at the time.

I concur in the affirmance of the order as to Antisdale; I dissent from the order affirming the judgment as to the Presbytery.

GOODELL, Justice.

NOURSE, P. J., concurs.

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