BOYD v. CRESS

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District Court of Appeal, Third District, California.

Guy BOYD, Plaintiff and Respondent, v. John CRESS, Defendant and Appellant.*

Civ. 8495.

Decided: January 12, 1955

McDougall & Fitzwilliam, Sacramento, for appellant. J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico, for respondent.

This is an appeal from a judgment in favor of plaintiff and respondent against defendant and appellant for damages for personal injuries. The question involved turns on a construction of the so-called guest statute, section 403 of the Vehicle Code, which provides as follows:

‘No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of such vehicle or against any other person legally liable for the conduct of such driver on account of personal injury to or the death of such guest during such ride, unless the plaintiff in any such action establishes that such injury or death proximately resulted from the intoxication or wilful misconduct of said driver.’ (Emphasis added.)

There is no dispute as to the facts, which we shall summarize briefly.

Respondent and appellant were hunting companions and desired to find a place near Chico, their home, to hunt deer. On September 2, 1951, at approximately 10:30 p. m., they left Chico in the appellant's automobile for the purpose of going to Fall River, over 200 miles away, in order to make plans for deer hunting later in the year. It was stipulated at the outset of the trial that the respondent was a guest at the beginning of the trip. At about 2:00 or 3:00 o'clock in the morning of September 3, 1951, appellant pulled over to the side of the road and stopped his car, apparently to check the air pressure in a tire and so that both parties could get out and stretch. Appellant's car was a 1951 Chevrolet two-door sedan and when the doors are pushed open far enough they will ‘lock’ in the open position. Respondent got out of the car on the right hand side and left the door in the open position. He stood right next to the door and was knocked down when the car rolled backward causing the door to hit him. He fell and struck his shoulder on the sharp tip of the front bumper. After the car rolled a few feet appellant stopped it by setting the brake. Appellant had remained sitting behind the steering wheel after he had stopped the car and until the accident occurred. Respondent suffered certain injuries to his shoulder; the extent of the injury and amount of the damages are not here in question. Appellant and respondent got back in the automobile and continued their trip to Fall River and then returned to Chico. Respondent was awarded $500 general damages and $1,300 special damages.

Appellant contends that respondent was a guest within the meaning of section 403 of the Vehicle Code and that for that reason the judgment must be reversed. Respondent contends that he was not a guest at the time of the accident because the accident did not occur ‘during such ride.’

The so-called guest statute was first enacted in 1929 as section 141 3/4 of the California Vehicle Act, St.1929, p. 1580, and, in so far as here pertinent, read as follows:

‘Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways * * * and while so riding * * * receives * * * an injury, shall have no right of recovery against the owner * * *.’

The section as it then stood was construed in Moreas v. Ferry, 135 Cal.App. 202, 26 P.2d 886, wherein the court analyzed the wording of the section. In that case the plaintiff rode with the defendant to a theater. That theater was crowded. They decided to seek another place of entertainment. The defendant was sitting by the steering wheel and requested the plaintiff to crank the car. The plaintiff cranked the car and the crank kicked, breaking plaintiff's arm. The court held that under such circumstances the injury was not inflicted in any vehicle ‘moving upon any highway’ and was not inflicted upon the guest ‘while so riding.’

Section 141 3/4 was also construed in Prager v. Isreal, 15 Cal.2d 89, 98 P.2d 729, decided after the present section 403 of the Vehicle Code was enacted, but in which the accident occurred while the former section 141 3/4 was still in effect. In that case, as stated in the opinion, at page 91 of 15 Cal.2d, at page 730 of 98 P.2d:

‘On Sunday, June 9, 1935, defendant called at plaintiff's home in San Francisco to take her for a ride in his automobile. They drove about the city for an hour or more, then parked on a widened portion of the public highway overlooking the beach. They moved to the back seat to eat a lunch prepared by the plaintiff. Around 5 o'clock they decided to attend the theater. Plaintiff, who was seated on the right side of the rear seat, started to leave the car on that side, intending to resume her former position in the front seat. At the same time the defendant alighted on the left side to resume his position as driver. As the plaintiff had one foot on the ground and the other on the running board, the car moved forward, throwing her to the ground. She sustained injuries resulting principally in a fracture of the neck of the left femur.’

In affirming a judgment in favor of plaintiff the court said at page 92 of 15 Cal.2d, at page 731 of 98 P.2d:

‘The definition of the term ‘guest’ must be construed with the rest of the section in which it appears. The first paragraph thereof sets forth the conditions under which a guest, so defined, will be denied recovery for injuries. Those conditions are when a guest accepts a ride in any vehicle ‘moving upon any of the public highways', and receives or sustains an injury ‘while so riding as such guest’. It is clear that unless all of those conditions are satisfied, the plaintiff is not such a guest as is denied recovery for her injuries by the terms of the guest statute.

‘In this connection it is significant that the phrase ‘while so riding’ was used not once, but five times in section 141 3/4. It is therefore not to be presumed that its presence therein was due to happenstance or a mere legislative inadvertence.

‘Defendant states that ‘it would be absurd in the extreme to hold that one who has accepted a ride with another and had thus become his guest, immediately changed to a paying passenger or a mere trespasser as soon as the wheels of the car stopped turning at a highway intersection, or when the parties have voluntarily stopped for gas or lunch or similar conveniences'.

‘Be that as it may, it would be equally illogical to say that a car which had been parked for several hours on a widened space in a public highway provided for that purpose, and which thereafter moved a few inches due to defective brakes or their lack of application—without a driver behind the steering wheel and without the motor having been started—is ‘moving on’ a public highway within the meaning of the statute.

‘We are likewise of the opinion that a person alighting from an automobile, who is in a position with one foot on the ground and the other on the running board when it so moves cannot be said to be ‘riding’ in said automobile within the meaning of said statute.'

In the case of Harrison v. Gamatero, 52 Cal.App.2d 178, 125 P.2d 904, 907, the accident arose after the effective date of Section 403. In that case the defendant-host double parked and sent a seven year old child across a busy street to mail a letter for defendant. The child was struck by another car as she endeavored to cross the street and return to defendant's car after mailing the letter for defendant. In rejecting the defendant's claim that the child was a guest, the court cited Moreas v. Ferry, supra, and Prager v. Isreal, supra, in support of its conclusion that ‘Certainly plaintiff was not riding in the automobile within the meaning of said section 403 at the time of her injury.’

The case of Smith v. Pope, 53 Cal.App.2d 43, 127 P.2d 292, also arose after the effective date of section 403. In that case the plaintiff was injured when she started to enter the car. She had one hand on the door handle, one foot on the ground and the other in the air when the car jerked forward, throwing her to the ground. In affirming a judgment in favor of plaintiff, the court in construing the phrase “during such ride” stated at page 47 of 53 Cal.App.2d, at page 295 of 127 P.2d, that such phrase ‘contemplates that such a ride by the guest must have been actually commenced.’ The court stated further: ‘In other words, it was not necessary, as it was before under the former section, to show that the vehicle was ‘moving upon any * * * highway,’ but only to show that the injury occurred ‘during the ride’ which would include in that category all the time elapsed from the time of entering the vehicle, and while so continuing such occupancy, until the journey's end.'

The question to be determined in the instant case is whether or not respondent was a guest at the time of the accident, and the determination of that question depends upon whether or not the accident occurred ‘during such ride.’ It was stipulated that respondent was a guest at the beginning of the trip and appellant contends that although respondent was outside of the automobile and standing beside it at the time of the accident, he was still a guest within the meaning and intent of Vehicle Code section 403. Respondent argues in reply that ‘It offends common sense to believe that a person standing on the ground outside of an automobile is ‘riding’ within an automobile,' and that ‘such a result was not intended by the Legislature or by the Appellate Courts of this State.’

Prior to 1929 a person riding in an automobile as the guest of the driver or owner could recover for any injuries received which were caused by the negligence of the driver or owner of the automobile. It was in that year that the legislature adopted a new section of the California Vehicle Act, section 141 3/4, which provided that ‘Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways * * * and while so riding * * * receives * * * an injury, shall have no right of recovery against the owner * * *’ unless the injury resulted from ‘the intoxication, wilful misconduct, or gross negligence of such owner [or] driver’.

As aptly stated in the recent case of Buckner v. Vetterick, 124 Cal.App.2d 417, at page 418, 269 P.2d 67, at page 68:

‘Statutes ‘must be construed with their intent and purpose in view and the mischief at which they were aimed’, Evans v. Selma Union High School Dist., 193 Cal. 54, 57, 222 P. 801, 802, 31 A.L.R. 1121, for these often throw light upon the sense in which the language is used. The situation which section 403 was designed to correct is well known and admirably stated in Crawford v. Foster, 110 Cal.App. 81, at page 87, 293 P. 841, at page 843, where it is said that, ‘As the use of automobiles become 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. * * * Doubtless, the Legislature intended to change the rule heretofore adopted in this state, that a mere invited guest could recover for simple negligence * * *.’

In the cases of Moreas v. Ferry, supra, and Prager v. Isreal, supra, in which the former section 141 3/4 of the Vehicle Act (the first guest law statute) was considered, it was held that the so-called guest law, being in derogation of the common law, must be strictly construed, and that because the term ‘while so riding’ was used five times in said section 141 3/4, a person who was not actually riding in the vehicle at the time of the accident could not be held to be a guest within the meaning of said section.

However, in 1935, after the decision in Moreas v. Ferry, the legislature amended and revised the so-called guest statute and enacted the present section 403 of the Vehicle Code. We may take judicial notice of the fact that in formulating and enacting legislation the legislature has the assistance and advice of a well-trained and very efficient legislative counsel bureau, and that it was therefore aware of the decision in Moreas v. Ferry, and felt that that decision necessitated an amendment of the guest statute so as to make it conform to what was undoubtedly the original intent and purpose of the statute.

That this is so is indicated by the following statement by Mr. Justice Carter in Prager v. Isreal, 15 Cal.2d at page 94, 98 P.2d at page 731:

‘In addition, it is to be observed that following the decision in Moreas v. Ferry, supra [135 Cal.App. 202, 26 P.2d 886], the legislature eliminated from the statute, the phrase ‘in any vehicle, moving upon any of the public highways' and inserted in its stead the words ‘in any vehicle upon a highway’, and further eliminated entirely the use of the phrase ‘while so riding’. * * *

‘It was held in Oakland Paving Co. v. Whittell Realty Co., 185 Cal. 113, 195 P. 1058, that the elimination of a statutory clause after the rendition of a decision affecting the law is to be regarded as an indication of legislative intent to change the meaning of the law or to obviate objections to it. It may therefore be inferred that the legislature recognized the correctness of the decision in Moreas v. Ferry, supra, in the light of the wording of the statute at that time, and made the abovementioned changes in order to obviate the necessity of such an interpretation. See McColgan v. Jones, Hubbard & Donnell, Inc., 11 Cal.2d 243, 78 P.2d 1010.’

Respondent contends that it offends common sense to believe that a person standing on the ground outside of an automobile is ‘riding’ within an automobile. However, section 403 provides that ‘No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride * * * has any right of action for civil damages against the driver of such vehicle * * * on account of personal injury to * * * such guest during such ride * * *.’ (Emphasis added.) We believe that the statute cannot reasonably be given the narrow construction that respondent gives it, and that to do so would do violence to the intention of the legislature. In the instant case it was admitted that respondent became the guest of appellant for the purpose of going from Chico to Fall River. The ride commenced in Chico, and, as hereinbefore set forth, several hours later appellant stopped the car, apparently to check his air pressure and for the parties to get out and stretch. It was while respondent was standing by the side of the car that the car rolled backward and the edge of the door struck him. Thereafter both appellant and respondent got back into the car and continued the trip.

We believe that when the legislature changed the law in 1935 by eliminating the words ‘moving upon’ and ‘while so riding’, and enacted section 403 in its present form, the legislature intended that a person who as a guest accepts a ride without giving compensation becomes a guest when the ride or journey begins and remains a guest while the car is in motion, and while the car is idle or stopped, where the purpose of the stop is a part of and incidental to the ride or journey. We do not believe that it was the intention of the legislature that the host-guest relationship should be held to have been interrupted under the circumstances present in the instant case. To so hold would in our opinion not only render the changes made in the earlier guest statute meaningless, but would defeat the object that the legislation was intended to accomplish.

The following language of the appellate court of Illinois in a recent case construing a similar statute may well be applied to the instant case. In that case, Tallios v. Tallios, 350 Ill.App. 299, at page 304, 112 N.E.2d 723, at page 725, the court said:

‘A narrow or literal interpretation of the words ‘person riding in a motor vehicle as a guest, without payment for such ride,’ limiting the effect of the statute to accidents occurring when a guest is seated in an automobile in motion, would defeat, or at least impair, the purpose of the legislation. To give full effect to the legislative intent a generous owner or driver must be protected at all times that the relation of host and guest exists in connection with the free ride. The beginning and end of that relation is not unlike the beginning and end of the relation of carrier and passenger for hire in a public conveyance. In the latter case the relation begins with the attempt of the passenger to enter the conveyance and ends when he has alighted in safety on completion of the journey. It is not interrupted or terminated by a temporary absence from the conveyance for a reasonable and usual purpose. 10 Am.Jur., Carriers, pages 33, 34, 54 and 56. So, the relation of host and guest between automobile owner or driver and a passenger riding without payment of compensation begins when the guest attempts to enter the automobile, and ends only when he has safely alighted at the end of the ride. Here the ride had not terminated. Plaintiff was injured before she reached her destination. The stopping of the automobile to permit further search for plaintiff's purse and the act of plaintiff in getting out of the car to more effectively make the search, were usual and customary acts incidental to a normal courtesy to plaintiff as defendant's guest. She did not lose her status as a guest.'

In the case of Castle v. McKeown, 327 Mich. 518, 42 N.W.2d 733, 734, the plaintiff-guest had ridden with defendant-driver in the latter's automobile from Lansing to Lake Lansing for a picnic. On the return trip to Lansing defendant stopped the car in order to examine a rear tire; plaintiff was ill and she left the car and went to a shed in a nearby field. She returned in a few minutes and when she started to get back into the car she was thrown to the ground and injured as a result of the defendant's negligence. The court said that the ‘purpose of the guest act is to protect owners and operators of automobiles from liability for ordinary negligence arising during the gratuitous passage furnished to others. * * * In the instant case the journey had not ended. The interruption was not over five minutes and was for purposes directly related to the trip and mutually beneficial to both driver and passenger. Transportation from the lake to plaintiff's home was still in progress at the time Mrs. Castle was injured. She was then a guest being transported within the meaning of the statute.’ The Michigan statute, Comp. Laws 1948, § 256.29, uses the words ‘no person, transported by the owner or operator’, which is similar in meaning and effect to our own statute. It is important to note that the court in such situation held that the plaintiff was within the guest statute which required that she be ‘transported.’ So in the instant case the trip had not been completed, it was still in progress, and the stop was made for the mutual benefit of both respondent and appellant, so that the air pressure in the tire could be checked and to allow them to stretch their muscles.

As is well said in McGrath v. Kaelin, 66 Cal.App. 41, at page 44, 225 P. 34, at page 35:

‘* * * it is a rule of statutory interpretation that the intention of the Legislature controls if it can be reasonably drawn from the lenguage used, to the rejection of a more literal construction which would result in inconsistency or absurdity. To find such intent is the object of all interpretation. A statute will be construed, therefore, with reference to the whole system of which it is a part, and all statutes which relate to the same subject-matter, briefly called statutes in pari materia, are construed together. They are all compared, and harmonized if possible, to ascertain the legislative intent and to give them effect accordingly.’

In view of the foregoing we conclude that the trial court erred in finding that respondent was not a guest of appellant within the meaning of section 403 of the Vehicle Code. Since respondent's complaint did not allege, nor is there any evidence of, wilful misconduct or intoxication on the part of appellant, it follows that since respondent was a guest within section 403 of the Vehicle Code he cannot recover for the injuries sustained as a result of the appellant's ordinary negligence.

The judgment is reversed.

SCHOTTKY, Justice.

VAN DYKE, P. J., and PEEK, J., concur.

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