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

Amelia PANOPULOS, Plaintiff and Appellant, v. Gussie MADERIS, Defendant and Respondent.

Catherine FITTS, Plaintiff and Appellant, v. Gussie MADERIS, Defendant and Respondent.

Beatrice SCHUNKE, Plaintiff and Appellant, v. Gussie MADERIS, Defendant and Respondent.

Elizabeth HODENSON, Plaintiff and Appellant, v. Gussie MADERIS, Defendant and Respondent.*

Civ. 16318–16321.

Decided: February 14, 1956

James F. Boccardo, San Jose, Edward J. Niland, San Jose, of counsel, for appellants. Campbell, Custer, Warburton & Britton, Frank L. Custer, San Jose, W. R. Dunn, Burlingame, of counsel, for respondent.

The four named plaintiffs filed separate actions for personal injuries received while plaintiffs were occupants of an automobile owned by defendant. The four causes were consolidated for trial. The jury, in response to a special interrogatory, found that all plaintiffs were guests in the automobile, and brought in defense verdicts. From the judgments entered on those verdicts plaintiffs appeal.

The principal question involved is, whether plaintiffs were guests of defendant within the meaning of section 403 of the Vehicle Code.1 Insofar as this problem involves a controverted question of fact, it has been resolved by the verdicts of the jury adverse to plaintiffs. The principal contention made on this appeal is that, as a matter of law, the guest law is not applicable to the facts here presented.

The accident occurred late in the evening of November 14, 1950. On that evening defendant, driving her new 1950 Chevrolet two-door sedan, had transported five other women from San Jose to Mountain View to attend a public card party. Four of these women are the plaintiffs here involved; the fifth was a Mrs. Pereira.

The automobile involved had been purchased by defendant some two and a half months before the accident, and was equipped with an automatic transmission. Defendant had been driving automobiles since 1913. The gear shift lever on this Chevrolet is located between the steering wheel and the dashboard, and is equipped with a gear indicator. There are five positions for the gear lever. From left to right these are ‘Park,’ ‘Neutral,’ ‘Drive,’ ‘Low,’ and ‘Reverse.’ In order to move the lever from ‘park’ to ‘neutral,’ it must first be lifted up and then brought down. The lever can be moved from ‘neutral’ to ‘drive,’ however, by the application of fingertip pressure on the lever, without the necessity of first lifting it up. When the emergency brake is properly engaged, even though the gas pedal is pressed and the gear shift lever is in ‘drive,’ the car will not move forward. If the lever is in ‘neutral,’ assuming a level grade, and the gas pedal is pressed, the car will not move. If the lever is in ‘drive’ and the idling speed of the engine is fast, the car will tend to creep. If the emergency brake at this point is set at about half way, the car will not creep. If the lever is in ‘park,’ the back wheels lock and the car cannot be moved without skidding the back wheels. The back wheels are not locked while the car is in ‘neutral.’ The handbrake can be set by a person of average strength.

On the night in question defendant picked up the five women at their respective homes in San Jose and drove them to the public care party in Mountain View. The six women left the party at about 11:30 p. m. to return to San Jose. They placed themselves in the car with defendant in the driver's seat, Mrs. Fitts next to her and Mrs. Schunke next to her. The other three women were in the back seat. Defendant intended to take Mrs. Fitts home first. Mrs. Fitts lives on Carlisle Street in San Jose, a street that runs east and west, her home being on the north side about 150 feet from where Carlisle Street intersects Santa Teresa. The northeast corner of that intersection is occupied first by a parking lot and then by a market. From Mrs. Fitts' home to the west wall of that market is about 300 feet. Carlisle Street in this area is apparently level.

Defendant drove down Carlisle Street, going east, and stopped her car in front of Mrs. Fitts' house. The evidence is sharply conflicting as to whether she parked on the north or south side of Carlisle Street. At any rate, after she had stopped, defendant got out of the car, leaving the motor running. She testified that she left the gear shift lever in ‘neutral,’ even though she admittedly knew that if she put it in ‘park’ the back wheels would have been locked, and that to get the lever out of ‘park’ it was necessary to lift the lever, but if left in ‘neutral’ very little pressure would shift the lever to ‘drive’ or ‘low.’ Defendant did testify that she put the handbrake on, assuming that this would prevent the car from moving. After alighting from the car defendant told Mrs. Fitts to get out on the driver's side. Mrs. Fitts, at the time of the accident, was 83, small and infirm. She had never driven a car. The other occupant of the front seat, Mrs. Schunke, also was a non-driver. Mrs. Fitts started to slide under the wheel to get out. As she did so the automobile suddenly started forward. Mrs. Fitts did not know whether she had any connection with this, nor did she know precisely where her hands and feet were when the car started to move. None of the other occupants of the car knew where Mrs. Fitts had placed her hands and feet just prior to the car starting. Defendant, who was standing at the side of the car, testified that Mrs. Fitts was attempting to push or pull herself out of the car, with her right hand on the steering wheel and her left hand on the seat. Defendant could not see where Mrs. Fitts had her feet. Obviously, if the car was in ‘neutral’ Mrs. Fitts must have accidentally moved the lever to ‘drive’ or ‘low’ and her foot must have pressed the accelerator, because the automobile proceeded, driverless, east on Carlisle, jumped the east curb of Santa Teresa, ran across the parking lot and hit the west wall of the market, some 300 feet from where it had started. The defendant estimated the speed at a constant ten miles an hour. Mrs. Schunke estimated that the car reached 35 miles per hour before the crash. Plaintiff Panopulos testified that the car ‘went just like a bullet’ and hit the wall at a high rate of speed. It must have been going at a fast rate because the car was a total loss. All four plaintiffs were seriously injured.

The evidence was conflicting as to whether the ride was a business transaction for which the plaintiffs paid defendant, or whether the ride was a mere social courtesy. All four plaintiffs testified that their acquaintanceship with defendant was limited to going with her to public card parties, and that, on such occasions, they were expected to and did pay defendant fifty cents each for transportation. They all testified that on the night in question they had paid defendant fifty cents for the ride. If this testimony had been believed the plaintiffs would have been passengers and not guests within the meaning of section 403 of the Vehicle Code. Defendant testified that she did not ask or expect persons riding with her to card parties to pay her money as consideration for the ride, but that she would accept money if it were offered to her; that occasionally women who had been transported would give her ten or fifteen cents, or buy her ticket to the card party. She admitted that on the night in question Mrs. Schunke had given her fifty cents, and that Mrs. Panopulos had bought her ticket (50 cents) to the card party. She denied that Mrs. Fitts or Mrs. Hodenson had paid her anything on the evening in question. Mrs. Pereira testified that she had frequently ridden to card parties with defendant; that she had never seen any ladies riding with defendant pay her any money; that she occasionally slipped defendant 30 or 35 cents, but defendant never asked her for any money; that she did not see any of the plaintiffs pay defendant on the night in question, although she did hear Mrs. Panopulos tell defendant that she would buy her ticket to the card party.

On this evidence, the jury, in response to special interrogatories, found that plaintiffs were guests and not passengers. It may be assumed that, for purposes of these appeals, this finding is binding and that plaintiffs were non-paying occupants of the automobile.

Plaintiffs next argue that, even if the finding that plaintiffs were non-paying occupants of the car is supported, nevertheless plaintiffs were not ‘guests' of defendant within the meaning of section 403 of the Vehicle Code. It will be remembered that that section provides ‘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 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’ (italics added) unless the driver was guilty of wilful misconduct or was intoxicated. If this statute is applicable then the verdicts of the jury are supported because there is no evidence of wilful misconduct or intoxication on the part of defendant. Her conduct in getting out of the car with the motor running, and in leaving it probably in gear without the emergency brake properly adjusted, would support a finding of negligence, but not one of wilful misconduct. See annotation 16 A.L.R.2d 979.

Section 403 of the Vehicle Code is a limitation upon the common-law action of a guest against his automobile-driving host. It took away the common-law cause of action such guest had against his host-driver for ordinary negligence. For this reason the Supreme Court of this state has properly ruled that the section must be strictly construed. In Prager v. Isreal, 15 Cal.2d 89, 93, 98 P.2d 729, 731, the Supreme Court laid down the following rules of construction: ‘It is well settled in this and other states that the so-called ‘guest laws' are in derogation of the common law and must be construed strictly. [Citing cases.] Furthermore, as stated in Rocha v. Hulen [6 Cal.App.2d 245, 254, 44 P.2d 478, 483], ‘The common-law right of having redress for injuries wrongfully inflicted, being lessened by such statutes, necessitates strict construction, and also that cases be not held within the provisions of such statutes unless it clearly appears that it should be so determined.’' (Emphasis the court's.)

This rule of construction has been applied to various factual situations, but the question as to whether one outside the car is a ‘driver’ within the meaning of the section seems never to have been discussed by any California appellate court. It will be noted that the section does not deprive a guest of his negligence action in all situations. It does so only in actions ‘against the driver of such vehicle’, or person liable ‘for the conduct of such driver’. The basic question here is whether, when the accident happened, was defendant the ‘driver of such vehicle’?

Even without the rule of strict construction it seems quite clear that, when defendant got out of the car and left it unattended, she was no longer the ‘driver of such vehicle’, as those terms are generally understood. A driver is one who is driving, or is in a position to drive the vehicle. The defendant was outside the car and so was not driving, nor was she in a position to drive the vehicle. This common sense interpretation of the term ‘driver’ is corroborated, if such corroboration were necessary, by the provisions of section 69 of the Vehicle Code defining the term ‘driver.’ It provides: “Driver' is a person who drives or is in actual physical control of a vehicle.' Obviously ‘a person who drives' must be one who is in a position to drive. One completely outside a vehicle is not one ‘who drives' the vehicle. Equally apparent is it that one who is outside the vehicle is not one ‘in actual physical control of a vehicle.’ Support for this construction is found in the case of Puckett v. Pailthorpe, 207 Iowa 613, 223 N.W. 254, 256. the precise point in that case was whether one who had not yet entered a vehicle which was driverless at the moment, was a guest within the meaning of the Iowa law. The court pointed out that to fall within the legislation a person must be riding, without fare, in a motor vehicle ‘operated by a driver’ on a ‘journey.’ Then, discussing the Iowa guest law, the court said, 223 N.W. at page 256: ‘Manifestly, section 5026b1, supra, contemplates a person on such journey in a motor vehicle, driven or operated by some one. * * *

‘* * * Entrance must be made into an automobile then in the operation of a driver so that a journey can be taken. There can be no trip without a driver. Thus a person in such motorcar without a driver operating it is not a passenger, within the meaning of the section under consideration; for, in the absence of the necessary operator, there can be no journey, and consequently no riding. Without the driver, the journey, and the riding, there is no passenger in the case at bar. If then, under the provisions of the statute in question, there is no driver, there can be no passenger. That is the very underlying fundamental principle embodied within the section. * * *

‘With these observations in mind, a conclusion must be reached that a driver was or was not operating appellees' automobile at the time in question. It appears from appellant's petition that no one was in charge, driving or operating the vehicle when appellant was injured. ‘Driver’ is not mentioned in that pleading. At the time appellant attempted to enter the conveyance, no one was in actual charge thereof, so far as her petition reveals. Hence she was not a passenger for the purposes of the legislation under consideration, because no driver was operating the machine. * * * She in truth could not make a journey, nor could she ride, until the arrival of a driver. During that interim, appellant was not on a journey, nor was she riding in a vehicle driven or operated by a driver.'

This language is applicable in the present case. The guest law was aimed at limiting the cause of action by one voluntarily accepting a ride against his host-driver. It was not intended to apply to negligence of the owner of the car independent of his or his agent's activities as a driver.

Defendant argues that in the instant case her negligence was committed as ‘driver’ of the car. It is argued that if it was negligence to get out of the car with the motor running without properly setting the brake, and leaving the automatic shift in a position that a slight push would start the car, all of such acts were committed by defendant as driver of the car and while she was still in complete control of it. These arguments lose sight of the fact that none of these acts would have been dangerous had defendant remained in the driver's seat. They became dangerous only, because, after they were committed, defendant committed another independent act of negligence, that is, in leaving the automobile unattended. The jury could have found that this negligence was the proximate cause of the accident. If the jury so finds, plaintiffs may recover for this negligence.

There seems to be no California case directly discussing the question as to the applicability of the guest law when the driver steps out of the car. But there are cases involving the converse of this situation—that is, where the guest steps out of the car, or is injured by the car while he is in the act of entering it. In such a situation, applying the doctrine of strict construction, the courts have held that the ‘ride’ has not yet started or has been interrupted and the guest law is not applicable. Harrison v. Gamatero, 52 Cal.App.2d 178, 125 P.2d 904; Smith v. Pope, 53 Cal.App.2d 43, 127 P.2d 292.

The case of Frankenstein v. House, 41 Cal.App.2d 813, 107 P.2d 624, cited by defendant, is not contrary to the rule here stated. There a demurrer was sustained without leave to amend and judgment entered for defendant. The complaint in that action charged that plaintiff was riding with defendant in the latter's car when defendant parked the car on a steep hill, left it unattended, and the car rolled down the hill, and plaintiff was injured. The only point discussed by the court was the status of the plaintiff. The court did not discuss the status of the defendant. The court held that plaintiff entered the car as a guest and not as a paying passenger, and that such status did not change. The holding of the court was, on page 816 of 41 Cal.App.2d, on page 626 of 107 P.2d: ‘As long as a person, without compensation to the driver, has entered a car upon the invitation of such driver and remains ‘in the vehicle upon a highway’, ‘during such ride’ (sec. 403) he is a guest and cannot recover damages for the simple negligence of the host.' This is, of course, generally speaking, sound law. Section 69 of the Vehicle Code is not mentioned in the opinion, nor did the court discuss the question as to whether defendant was still the driver after he left the car. The case cannot be accepted as an authority on a point it did not discuss.

The only other point necessary to mention is defendant's contention that the point discussed above was not raised in the trial court and is being raised for the first time on appeal. It is urged that plaintiffs are precluded from changing their theory on appeal.

It must be conceded that in their pleadings, and at the trial, the main theory of plaintiffs was that they were passengers because they paid for the ride. But the basic question was whether or not section 403 of the Vehicle Code was applicable to the facts of this case. As already held, as a matter of law, under the undisputed facts, the section is not applicable. The rule that one may not change his theory on appeal is based on the concept that fairness and justice to respondent requires that the appellant be limited to the theory urged in the trial court in any case where to change the theory would adversely affect the respondent in that he may have failed to present evidence that he might have had on a point not raised. The rule will not be followed where the error is fundamental and where the problem presented is one of law and not of fact. See discussion and cases cited in 3 Witkin, California Procedure, p. 2264. In the instant case it is undisputed that defendant was out of the car when the accident happened. Defendant, as well as all other witnesses, so testified. As a matter of law, section 403 is not applicable to such a situation. In such a case, as a matter of law, plaintiffs may recover for the ordinary negligence of the defendant. Instructions were offered to that effect by plaintiffs. That being so, fairness and justice to the plaintiffs require that the case be presented to the jury on the proper theory. Defendant cannot legally object to the case being presented to the jury on a proper theory. This was not done.

The judgments appealed from are reversed.


1.  So far as pertinent here that section provides: ‘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’ except in cases of the wilful misconduct or intoxication ‘of such driver’.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.