MARTINEZ v. William Lopez Martinez and Carmen R. Martinez, Defendants and Appellants.

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District Court of Appeal, Fourth District, California.

Katie MARTINEZ and Della C. Martinez, Plaintiffs and Respondents, v. SOUTHERN PACIFIC COMPANY et al., Defendants, William Lopez Martinez and Carmen R. Martinez, Defendants and Appellants.

Civ. 4948.

Decided: April 08, 1955

John Said, Fresno, for appellants. John D. Chinello, Lawrence E. Viau, Jr., Fresno, for respondents.

The plaintiffs were injured on February 27, 1952, when an automobile in which they were riding collided with a Southern Pacific switch engine. The automobile was owned by the defendant Carmen Martinez, and was being driven by his son William Martinez. The complaint in this action alleged that the automobile was being driven by William Martinez with the permission of its owner, Carmen; that each plaintiff ‘was a passenger for consideration in this automobile’; and that the collision was caused and brought about by the joint and concurrent negligence of William Martinez and the engineer operating the switch engine. The answers of the defendants William and Carmen Martinez denied that the plaintiffs were passengers for consideration in this automobile, denied that it was being driven by William with the permission of Carmen, and denied the allegations of negligence on the part of William.

The case was tried without a jury. The court found that this automobile was owned by Carmen Martinez and, with his permission, was being operated by William Martinez; that the plaintiffs were riding as passengers therein; that the plaintiffs gave compensation to William and Carmen for the privilege of riding as passengers in this automobile; and that the accident was caused solely by the negligence of William Martinez, and not through any negligence on the part of the engineer operating the switch engine. Judgment was entered in favor of the Southern Pacific Company and its engineer, and awarding $5,961 to the plaintiff Martinez and $5,281.50 to the plaintiff Delia Martinez as against the defendants William Martinez and Carmen Martinez. William and Carmen have appealed from this judgment.

There is little conflict in the evidence. The appellants and respondents are members of the same family. Carmen Martinez is the father of the appellant William and the respondent Katie. The respondent Delia is his daughter-in-law. Katie and William lived with Carmen and his wife at their home in Fresno. Katie was 20 years of age and William was 18 years old. The respondent Delia is the wife of Carmen's son Cypriano, and they lived in a small house in the rear of Carmen's home and on the same lot.

For some eight months prior to the accident Katie and Delia had been working at a packing house. During most of this period they were taken to work by a Miss Borella, who also worked there. They each paid Miss Borella $1 to $1.25 a week for transportation. Two weeks before the accident Miss Borella quit her work at this packing house and ceased taking respondents to work. During this two weeks' period they were taken to work by Carmen, William or Cypriano, whichever one happened to be available. When Cypriano took them he used his own car, and when Carmen or William took them Carmen's car was used.

The respondent Katie Martinez testified that this family lived more or less as a unit, and those who were working put so much money into the family each week; that she was making $30 to $40 a week; that she gave her father $10 to $12 a week to help pay for groceries, power and lights; that ‘If he needed more, why I used to put in some more’; that if they needed ‘more money in the house than $10 or $12, why I used to give it to them, to the house, to him’; that during the two weeks before the accident she didn't pay any more money to her father than she had been paying before; and that she had bought gas when Cypriano was driving ‘to help him with gas'. While she testified at one time that she had never paid her brother William any money or anything prior to this accident, she also testified that ever since William was 14 she would occasionally give him 15¢ so he could go to the movies; that whenever he needed money to pay his bills he would come to her and she would give him some; that ‘Oh, when he used to ask me, he used to ask for $2.00 or $3.00—I mean, it depends how, or when—I never paid any attention, I just expected a favor returned’; that it was two months before the accident when she last paid a bill for him; that during these two weeks she was taken to work sometimes by her father, sometimes by William, and sometimes by Cypriano; and that ‘the one that was home’ would take her.

Respondent Delia Martinez testified that at the time of the accident she was living at her father-in-law's in a little house in the back; that during the two weeks preceding the accident she and Katie were taken to work either by her husband Cypriano in their car or by William or Carmen in Carmen's car; that while she and her husband lived there her husband from time to time gave his father certain money for household expenses, utilities and power; and that during the two weeks when she rode to work with her husband, with Carmen or with William, she never gave any one of them any money or anything for the rides. Her husband Cypriano testified that while they were living there he paid his father something to help him out with the bills to pay for the lights, gas and water; that these were bills for lights, gas and water on the whole premises; that he did this ‘in place of rent’; that during the two weeks preceding the accident he used his own automobile a few times to take his wife and sister to the packing house; that his brother William and his father Carmen also took them to work a few times; and that there were no arrangements among the drivers of the family as to the use of the cars.

William Martinez testified that he had used his father's car before; that he took the girls to work that morning; that who took the girls to work depended upon who happened to be around; that he had had no conversation with his father before he left that morning; that he had had no conversation with his sister Katie or sister-in-law Delia prior to taking them to work that day; and that he simply jumped in the car, behind the wheel, and they jumped in to be taken to work. When asked if either of the respondents paid him anything for taking them to work during these two weeks he replied: ‘Not for taking them to work, no, not directly.’ When asked whether at the time he simply did it as a favor to them he replied: ‘Yes, as a favor but I expected other favors right back.’ When asked if he had any arrangements with his sister or sister-in-law, he replied: ‘No, we had it as if it was understood between me and them. Of course, I wouldn't do nobody any favors if I didn't get any favors back.’ When asked if they had ever paid him anything for these rides he replied: ‘No, not directly for as payment, for my favors to them.’ When asked whether they had given him anything for those rides he replied: ‘They gave me something, but I wouldn't, well, not cash and carry, you know, right away. They didn't done something for me. I mean they didn't pay me right there and then, if that is what you mean.’ When asked ‘Did they do anything for the rides?’ he replied: ‘Not exactly for the rides, no.’ When asked ‘Is it a fact that you simply took your sister and your sister-in-law to work that morning as a favor to them?’, he replied: ‘Yes, that part is'. When asked if they had ever done anything for him for the ride on that morning, he replied: ‘Not, no, not that particular ride, no.’ Prior to the trial, William had signed a sworn statement in which he said:

‘I used to take them to work almost every morning. Neither one of them ever paid me anything for taking them to work. Nor did either one of them do anything for me. I simply took them to work as a favor since one of them was my sister and the other was my sister-in-law.’

Carmen Martinez testified that they all lived at the same address, and that he had never received anything of any kind or nature from Katie or Delia as payment for the rides.

The main question presented on this appeal is whether the evidence is sufficient to support the findings that the respondents were riding as passengers in this automobile, and that they gave compensation to the appellants for the privilege of riding as such passengers, within the meaning and intent of section 403 of the Vehicle Code. The general rules relating to the applicability of that section are well established. The cases hold that where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given; but that the mere payment of a portion of the expense, as for gasoline consumed, is merely incidental and does not constitute the motivating influence for the transportation. McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909; Whitmore v. French, 37 Cal.2d 744, 235 P.2d 3. Where a ride is offered in the hope of future business gain and the acceptance of the ride furnishes an opportunity for such gain, a tangible benefit appears justifying the inference that a business rather than a social purpose was the motivating influence for the ride. Follansbee v. Benzenberg, 122 Cal.App.2d 466, 265 P.2d 183. To constitute compensation within the meaning of the statute actual money need not pass. Where the trip was primarily for a business rather than a social purpose it is sufficient to show that the driver was to derive benefit from the transportation, Kruzie v. Sanders, 23 Cal.2d 237, 143 P.2d 704; Brandis v. Goldanski, 117 Cal.App.2d 42, 255 P.2d 36. It is not sufficient, however, where any inference of a tangible benefit amounting to a motivating influence rests solely upon conjecture. Lyon v. City of Long Beach, 92 Cal.App.2d 472, 207 P.2d 73.

While each case must rest upon its own facts, the purpose and intent of the statute itself should not be lost sight of. It has been pointed out that in adopting this statute the purpose of the legislature was to limit liability for carrying guests by providing that a mere invited guest could not recover for simple negligence, and further ‘to avoid collusive suits between members of the same family or friends, where the driver admits negligence in order to force his insurer to bear the loss resulting from the accident.’ Carey v. City of Oakland, 44 Cal.App.2d 503, 112 P.2d 714, 716; Crawford v. Foster, 110 Cal.App. 81, 293 P. 841. The evidence in the instant case indicates that the driver of the car, William Martinez, whose negligence caused the injury, was trying as best he could to assist his sisters in recovering a judgment against his father and himself. In interpreting this statute the courts have gone a long way in permitting a recovery where the ride involved any business transaction, where a hope of profit or benefit could fairly be said to be the motivating influence for the ride. In most, if not all, of the cases where some sort of business or economic benefit was involved, a practical and tangible benefit closely identified with the business of the driver, which was being furthered by the ride, has been required in order to establish a passenger relationship. Halbert v. Berlinger, 127 Cal.App.2d 6, 273 P.2d 274; Thompson v. Lacey, 42 Cal.2d 443, 267 P.2d 1. None of the cases of which we are aware have gone so far, in upholding a claim of tangible benefits as constituting the motivating influence for a ride, as would be required if this judgment were to be affirmed. To so hold where a minor is transporting other members of his family for their convenience, rather than in connection with any business in which he is interested, and under such evidence as here appears would in our opinion largely destroy the beneficial affect of this statute with respect to one of its main purposes.

This was not a business transaction in the ordinary sense of the word, and any hope of future benefit in taking other members of the family to work, if it existed at all, was merely incidental and decidedly secondary. While these riders contributed something to the family expenses no more was paid to, or expected by, the father than had previously been paid when other transportation was available. Nothing was given to or expected by the brother other than his later expressed hope for a continuance of the same favors he had received from his sister for some years, and long before any such transportation was furnished. Even this hope was clearly based upon the family relationship, rather than upon an expectation of receiving a tangible benefit from this ride. A hope of reward is not usually even thought of in connection with such a trip, and the evidence indicates that it was not considered here except as an afterthought. This trip was taken as a matter of accommodation and helpfulness between members of a family, and can fairly be considered only as a part of the customary use of family cars, and as a part of the common courtesy of family life. In our opinion, there was no substantial evidence of a tangible benefit to the driver or owner of this car which could be considered as the motivating influence for this ride, and the evidence is not sufficient to establish the giving of compensation for this ride within the meaning of section 403 of the Vehicle Code.

The respondents argue that the fact that they were being taken to work was for the economic benefit of the appellants and that this, with the interchangeable use of the two automobiles, is sufficient to support a reasonable conclusion that compensation was given for this ride. Assuming that the ability of the appellants to get to their work was of some economic benefit to other members of the family this should not, under the facts of this case, be held to be a special and tangible benefit, which was the motivating influence for furnishing this ride, within the meaning and intent of this statute. At best, it was a general and incidental benefit arising from the employment, and not from the driver's service on this particular trip. The provisions of this statute should not be so interpreted as to permit a recovery where the ride is furnished merely as a part of the ordinary courtesy and helpfulness normally extended by one member of a family to other members. The rendering of an occasional service of this nature by a minor to another member of the family is but a part of normal family life, and is done for a social purpose rather than as a business matter with an eye to present or future benefits.

The only other point raised is that the liability of the owner of the car, Carmen Martinez, for the imputed negligence of the driver was limited by section 402 of the Vehicle Code to $5,000 for the injury to each of the appellants and to $10,000 for the injury to both, and that the damages awarded were thus excessive as to him. While this contention appears to have merit, it is unnecessary to consider the matter under our views with respect to the main point raised.

The judgment is reversed.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.

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