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

WHITMORE et ux. v. FRENCH et ux.

Civ. 18066.

Decided: January 26, 1951

Thomas P. Menzies and Harold L. Watt, Los Angeles, for appellants. Parker, Stanbury, Reese & McGee and Richard E. Reese, all of Los Angeles, for respondents.

From a judgment in favor of plaintiffs after trial before a jury in an action to recover damages for personal injuries resulting from an automobile collision on the Big Oak Flat Road in the County of Mariposa, State of California, located within Yosemite National Park, defendants appeal.

Facts: At the time of the accident plaintiffs were occupants of an automobile owned and operated by the defendant French. Plaintiffs and defendants had started to make a trip to the Pacific coast from Lebanon, Missouri, on the mutual understanding that the expenses should be divided equally between them; that defendant Howard French would do the driving and plaintiff Arthur M. Whitmore would take care of the road maps. A head-on collision with another car ensued, as a result of which plaintiffs were injured.

Questions: First: In view of the fact that the accident occurred in Yosemite National Park did the Federal Courts have exclusive jurisdiction over the cause of action alleged in the complaint?

This question must be answered in the negative. An action in tort is a transitory action and may be maintained in any jurisdiction where the defendant may be found. (Loranger v. Nadeau, 215 Cal. 362, 366, 10 P.2d 63, 84 A.L.R. 1264.)

Second: Did the trial court commit prejudicial error in instructing the jury that defendants were liable to plaintiffs Whitmore for simple negligence under the undisputed facts?

This question must also be answered in the negative. Defendants alleged in their answer to the amended complaint that plaintiffs and defendants were engaged in a joint venture in making a trip from Missouri to California, and alleged among other things that plaintiffs had a ‘voice and a right to be heard in the management and control of the enterprise;’ and also that plaintiffs had authority to exercise control over the operation of the automobile and a power to supervise the manner in which it should be operated.

These allegations are entirely repugnant to defendants' present contention that plaintiffs were merely guests in defendants' automobile, and that therefore the provisions of section 403 of the California Vehicle Code relative to personal injury to guests was applicable.

The allegations were binding upon defendants as admissions of fact and it would have been the duty of the trial judge to instruct the jury to disregard any evidence to the contrary. (Hubbard v. Jurian, 35 Cal.App. 757, 764, 170 P. 1093.) The trial judge correctly refused to instruct the jury relative to the provisions of section 403 of the California Vehicle Code.

Judgment affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.

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