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District Court of Appeal, Fifth District, California.

Lawriene TUCKER, Plaintiff and Respondent, v. Bertha Alice LANDUCCI, Defendant and Appellant.*

Civ. 6.

Decided: January 18, 1962

McCormick, Barstow, Sheppard & Coyle, and Hollis G. Best, Fresno, for appellant. Miles, Sears & Franson, Robert E. Sears, Avery, Meux & Gallagher, Kendall L. Manock, Fresno, for respondent.

This is an appeal from a judgment for damages because of personal injuries suffered by plaintiff in an automobile collision which occurred at the intersection of Olive Avenue and Marks Avenue in Fresno. Plaintiff was riding in a car owned and operated by defendant Bertha Alice Landucci when it collided with a vehicle driven by the defendant Leland Roy Hansen and owned by Reno P. Coletti, doing business as Reno's Specialized Service. The jury brought in a verdict for $29,000 against all of the defendants. Leland Roy Hansen and Reno P. Coletti did not appeal.

The judgment, as actually entered by the clerk, is erroneous in form. It sets forth the verdict, recites that the judgment as to the defendant Coletti, owner of the car driven by the defendant Hansen, is limited to $5,000, and continues:

‘Wherefore, by virtue of the law, and by reason of the premises aforesaid, it is ordered, adjudged and decreed that said plaintiff, Lawriene Tucker have and recover from said defendants, Leland Roy Hansen, Reno R. Colletti [sic], doing business as Reno's Specialized Service, and Bertha Alice Landucci, the sum of $24,000.00 * * *.’

The judgment is in fact for $29,000 against all defendants with a limitation, however, as to the defendant Reno P. Coletti, doing business as Reno's Specialized Service, to the sum of $5,000, that being the maximum for which the owner of the Hansen car was liable. (Veh.Code, § 4021.) The trial judge should forthwith order a correction of the judgment accordingly, as this was a clerical error. (Fallon v. Brittan, 84 Cal. 511, 514, 24 P. 381; George v. Bekins Van & Storage Co., 83 Cal.App.2d 478, 480, 189 P.2d 301; Savings & Loan Society v. Horton, 63 Cal. 310; 29 Cal.Jur.2d Judgments, § 100, p. 14.) For the purpose of this appeal we shall consider the judgment as being so amended.

Respondent sued appellant on two theories; first, that Mrs. Tucker was a passenger in the car, having given consideration for the ride and that therefore proof of simple negligence would be sufficient to sustain a verdict in her favor; the second theory was that although Mrs. Tucker was a guest in the car, the defendant was guilty of wilful misconduct.

It is conceded by appellant that she was guilty of negligence which was a proximate cause of the collision, but she denies wilful misconduct and urges that respondent was a guest and not a passenger. No claim is made on the appeal that the collision was the result of intoxication, or that plaintiff was guilty of contributory negligence. The appellant made a motion for directed verdict and a motion for judgment notwithstanding the verdict and maintains that this court should not only reverse the judgment but should order the entry of a judgment in her favor.

We shall consider first the contention that wilful misconduct was not proven. The only evidence as to the circumstances of the collision, aside from inferences that may be deduced from the physical facts existing after the casualty, is a statement which was taken by a California Highway Patrol officer from the codefendant Mr. Hansen. The plaintiff, Mrs. Tucker, and both of the two defendants, Bertha Alice Landucci and Leland Roy Hansen, claimed at the trial they were suffering from retrograde amnesia and that they were unable to recall the collision itself. The third occupant of the Landucci car, Mrs. Castle, was killed in the accident. The statement made by Mr. Hansen shortly after the crash was that his speed was about 35 miles per hour; that he was going east on Olive and Mrs. Landucci south on Marks; that she was not traveling fast, but at about the same rate of speed as he was; that she ran through a stop sign on Marks Avenue at the entrance of Olive Avenue and that the collision resulted.

One of the Highway Patrol officers estimated the point of impact to be three feet from the westerly edge of Marks Avenue, nine feet westerly of Marks center line and near the center of Olive Avenue. There were six feet of light skidmarks left by Mrs. Landucci's vehicle. No skidmarks were found as a result of the travel of the Hansen vehicle before the point of collision. The Landucci car was damaged at its right front, and the Hansen automobile at its left front. After the crash the cars broadsided, the Hansen vehicle turning in a circular motion and then in a southeasterly direction, coming to rest approximately 70 feet from the estimated point of impact.

Wilful misconduct is thus defined in the leading case of Meek v. Fowler, 3 Cal.2d 420, 425, 45 P.2d 194, 197:

‘The case of Howard v. Howard, 132 Cal.App. 124, 128, 22 P.(2d) 279, 281, after defining gross negligence as set forth in Krause v. Rarity, 210 Cal. 644, 293 P. 62, 77 A.L.R. 1327, and what is meant by wilful misconduct as set forth in Helme v. Great Western Milling Co., 43 Cal.App. 416, 185 P. 510, declares that “The mere failure to perform a statutory duty is not, alone, wilful misconduct. It amounts only to simple negligence. To constitute ‘wilful misconduct’ there must be actual knowledge, or that which in the law is esteemed to be the peril to be actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury.'

“While the line between gross negligence and wilful misconduct may not always be easy to draw, a distinction appears from the definition given in that gross negligence is merely such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results, while wilful misconduct involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences. It seems clear that in excluding all forms of negligence as a basis for recovery in a guest case, the legislature must have intended that to permit a recovery in such a case the thing done by a defendant must amount to misconduct as distinguished from negligence and that this misconduct must be wilful. While the word ‘wilful’ implies an intent, the intention referred to relates to the misconduct and not merely to the fact that some act was intentionally done. In ordinary negligence, and presumably more so in gross negligence, the element of intent to do the act is present and any negligence might be termed misconduct. But wilful misconduct as used in this statute means neither the sort of misconduct involved in any negligence nor the mere intent to do the act which constitutes negligence. Wilful misconduct implies at least the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result.'

‘Such intent and knowledge of probable injury may not be inferred from the facts in every case showing an act or omission constituting negligence for, if this were true, any set of facts sufficient to sustain a finding of negligence would likewise be sufficient to sustain a finding of wilful misconduct. As has been repeatedly declared, “wilful misconduct’ means something more than negligence—more, even than gross negligence.' North Pac. S. S. Co. v. Industrial Acc. Com., 174 Cal. 500, 502, 163 p. 910, 918; Kastel v. Stieber, 215 Cal. 37, 47, 8 P.(2d) 474.'

Merely running through a boulevard stop sign does not in itself constitute wilful misconduct. (Flannery v. Koch, 103 Cal.App.2d 55, 228 P.2d 580; Mish v. Brockus, 97 Cal.App.2d 770, 218 P.2d 849; Winn v. Ferguson, 132 Cal.App.2d 539, 282 P.2d 515.) (See also Porter v. Hofman, 12 Cal.2d 445, 448, 85 P.2d 447; Gillespie v. Rawlings, 49 Cal.2d 359, 317 P.2d 601; Stewart v. Kelly, 68 Cal.App.2d 122, 126, 155 P.2d 850; Olson v. Jones,172 Cal.App.2d 539, 546, 342 P.2d 440.)

Respondent contends, however, that the question of whether or not there was wilful misconduct was properly submitted to the jury, arguing that there is evidence that the defendant was generally familiar with the area where the intersection was located, that visibility was good, that she should have seen the oncoming Hansen automobile, and that consequently the jury had a right to infer that the defendant deliberately and with the knowledge that injury would probably occur to the occupants of her car, entered the intersection. Plaintiff principally relies upon Munson v. Friedman, 154 Cal.App.2d 73, 315 P.2d 727 and Allen v. Robinson, 85 Cal.App.2d 617, 193 P.2d 498. But in both of these cases there was evidence which showed that the defendant was aware of the danger involved and that he deliberately proceeded in such manner as to warrant the inference that he acted with knowledge that serious injury to his guests probably would result or in a wanton and reckless disregard for their safety.

There is no evidence in this case that appellant intended injury to the persons in her car, or that she drove wantonly or in intentional disregard of their welfare, or that she even had warning of any apprehended danger. Because of her retrograde amnesia, she also had the benefit of a presumption of due care. (Scott v. Burke, 39 Cal.2d 388, 247 P.2d 313.) There was no proof of wilful misconduct; the court should not have submitted this issue to the jury.

We turn to the inquiry whether there was substantial proof that the plaintiff had furnished consideration for the ride, and being, therefore, a passenger rather than a guest, whether she had the right to recover on the basis of the conceded negligence of the defendant driver. Under the guest law set forth in Vehicle Code, section 4032 , a person claiming the status of a passenger has the burden of proving that compensation was given for the ride. (Clapp v. Hester, 169 Cal.App.2d 558, 337 P.2d 525; Martinez v. Southern Pac. Co., 45 Cal.2d 244, 250, 288 P.2d 868.)

The opinion in Clapp v. Hester, supra, 169 Cal.App.2d 558, 559, 337 P.2d 525 contains the following discussion of various cases which pass upon the question of whether or not a person gives compensation for the ride and therefore becomes a passenger:

“Where * * * the driver receives a tangible benefit, monetary or otherwise, which is a motivating influence for furnishing the transportation, the rider is a passenger and the driver is liable for ordinary negligence. [Citations.]' Whitmore v. French, 37 Cal.2d 744, 746, 235 P.2d 3, 5 . What is such a benefit is well indicated by the following cases: When the rider goes along to assist the driver in loading, tallying weights, and using tire chains (Fedler v. Hygelund, 106 Cal.App.2d 480, 235 P.2d 247); when he goes for the purpose of assisting the driver in search of a market for the latter's oranges (Haney v. Takakura, 2 Cal.App.2d 1, 37 P.2d 170, 38 P.2d 160); when invited by the driver to aid the latter with her Christmas shopping (Kruzie v. Sanders, 23 Cal.2d 237, 143 P.2d 704); when a newspaper representative takes a prospective carier out on a route to acquaint him with his prospective duties (Sumner v. Edmunds, 130 Cal.App. 770, 21 P.2d 159); when a real estate broker takes her receptionist out to visit certain properties to enable the latter to familiarize herself with real estate activities, the better to perform the duties of her employment (Gillespie v. Rawlings, 49 Cal.2d 359, 317 P.2d 601); when two real estate brokers go to examine certain property which they expect will enable them to close a deal in which one of them represents the buyer and the other the seller (Parrett v. Carothers, 11 Cal.App.2d 222, 53 P.2d 1023); when three appraisers, each engaged by the same loan company to appraise certain property (none of whom can receive his appraisal fee until all three appraisals have been made) travel together in the car of one of them to make an appraisal (Jensen v. Hansen, 12 Cal.App.2d 678, 55 P.2d 1201); when three fellow employees take a business trip in the car of one of them, their employer paying the driver mileage for the use of his car; even without such reimbursement, the riders would be deemed passengers (Thompson v. Lacey, 42 Cal.2d 443, 267 P.2d 1); when a rider is taken on a business trip to help unload melons (Christiana v. Rattaro, 81 Cal.App.2d 597, 184 P.2d 682); when a rider accompanies the driver to guide the latter along the highway (Lerma v. Flores, 16 Cal.App.2d 128, 60 P.2d 546); when the rider's presence is desired by the driver to share in the driving (Druzanich v. Criley, 19 Cal.2d 439, 122 P.2d 53).

‘The question whether such a benefit accrues to the driver is usually a question of fact; ‘[h]owever, if the admitted facts can give rise to but one reasonable conclusion, the question as to whether or not ‘compensation’ was given for the ride becomes one of law. [Citations.]' Winn v. Ferguson, 132 Cal.App.2d 539, 543, 282 P.2d 515.'

The above summary of decisions shows that one of the principal criteria to determine if a plaintiff is a passenger rather than a guest is whether the driver and the person riding with her are engaged in a business errand of joint interest to both or of benefit to the driver. This conclusion is fortified by Brandis v. Goldanski, 117 Cal.App.2d 42, 255 P.2d 36 in which it is pointed out that the courts have been most liberal in holding ‘* * * as a matter of law, or in allowing the jury to find, that a benefit amounts to compensation where the purpose of the trip is business * * *.’ (See also Gillespie v. Rawlings, supra, 49 Cal.2d 359, 366, 317 P.2d 601; McCann v. Hoffman, 9 Cal.2d 279, 286, 70 P.2d 909.)

In some of the cases that are cited by the respective parties it is said that the consideration must be the motivating influence for the ride. In other cases it is said it must be a motivating influence for the ride. The consideration given by the passenger need not be the sole motive for the trip. There may be a friendly relationship between the parties as well as a business motive. We hold that it is sufficient if the consideration given is a motivating influence for the ride. (Gillespie v. Rawlings, supra, 49 Cal.2d 359, 364, 317 P.2d 601.)

When the evidence is in conflict, and it cannot be said that the only conclusion to be drawn is that no consideration was given for the ride, the trial court should submit the question to the jury. In the case of Baker v. Novak, 144 Cal.App.2d 514, 518, 301 P.2d 257, 260, the court in discussing the facts in that case said:

‘The jury would have to judge which motive actuated Mr. Baker, friendship or a bargain for the ride. Assuming such an implied finding by the jury for the purposes of appellant's contention on appeal, we find no error in submitting to the jury to question as one of fact.’

(See also Martinez v. Southern Pac. Co., supra, 45 Cal.2d 244, 288 P.2d 868.)

And in Thompson v. Lacey, 42 Cal.2d 443, 447, 267 P.2d 1, 3, the court says:

‘It may reasonably be inferred that while the benefits received by Kerns, the driver, may not have been the sole motivating influence, they were motivating influences of a substantial character.’

Clapp v. Hester, supra, 169 Cal.App.2d 558, 337 P.2d 525 points out that if the admitted facts can give rise to but one reasonable conclusion, the question as to whether or not ‘compensation’ was given for the ride is one of law, nevertheless, the question whether such a benefit accrues to the driver is usually a question of fact. (See also Winn v. Ferguson, supra, 132 Cal.App.2d 539, 543, 282 P.2d 515.)

The relationship of the various women involved in the action was that which usually obtains in the ranks of employment in a modern department store. All of them worked for the Rhodes department store in the Manchester District in Fresno. Mrs. Castle was over all the others. She was buyer in the store and had charge of the departments in which both the plaintiff and defendant and a Mrs. Abbott worked. Mrs. Landucci was a clerk in the Junior Wear Department; the plaintiff was assistant buyer or assistant manager of the Ladies' Ready to Wear Department; and Mrs. Abbott was the assistant buyer in the defendant's department. It was a question of fact for the jury to determine whether the trip that the three women were taking on the night of the accident was solely a social event or whether it involved a business relationship.

Several days before the Saturday on which the accident happened, Mrs. Landucci had asked Mrs. Castle to go to dinner with her. There is some evidence to the effect that a dinner invitation had also been extended to Mrs. Tucker prior to the time of the meeting in the bar hereinafter referred to, but Mrs. Tucker testified that the dinner invitation was given her only on the night of the accident.

During the day on which the collision occurred, Mrs. Castle invited plaintiff and Mrs. Abbott to go to a cocktail lounge across the street from the store to celebrate two birthdays, those of plaintiff and of Mrs. Abbott. When the store closed, Mrs. Castle, Mrs. Abbott and the defendant went to the cocktail lounge, and plaintiff later joined them there. During their conversation mention was made of plans for a store fashion show scheduled for the following Monday. Mrs. Castle was in charge of the show, and plaintiff was to participate in it. Mrs. Castle and plaintiff had previously arranged to meet on the following day to work out final details for it. The defendant was not a principal in the fashion show, but it was understood that as a saleswoman in the store she would have to give incidental help to it, and, if necessary, do anything that was required in the way of modeling.

At the cocktail lounge, Mrs. Castle said, “Why don't we discuss this over dinner?” Mrs. Tucker said that her daughter was expecting her, but that she would be willing to go with them to the Desert Inn, a restaurant on the outskirts of Fresno. She then telephoned to her daughter to notify her of her change of plans and stated to the two women that before she could go to dinner she would have to make a trip to a grocery store; she arranged with them to pick her up later at her home.

The plaintiff went in her own car to her home where defendant and Mrs. Castle later called for her. There was no reason particularly for using defendant's car. It was probably on the suggestion of Mrs. Castle, who did not own an automobile.

While the appellant testified that she had invited Mrs. Castle only as a friend, the jury could nevertheless conclude that she was receiving a substantial benefit which was at least a main motivation in asking Mrs. Castle to dinner, providing transportation for her and for the plaintiff who was a vital participant in making plans for the show. Mrs. Castle was defendant's superior, and her recommendation and good will not only would ensure her continued employment at the Rhodes department store, but would be a major factor in any advancement she might hope to get.

The three women had been together socially only on one other night prior to the accident, at a going-away party, a potluck supper given by appellant for Mrs. Castle when she had been leaving on a buying trip to New York, to which all of the store employees working in Mrs. Castle's department were invited. Appellant at one time had given respondent a ride home and at another time had gone to lunch with Mrs. Castle. She had never been in the homes of either Mrs. Castle or Mrs. Tucker, and she addressed Mrs. Castle by her last name. It could be inferred by the jury that the relationship between Mrs. Castle and Mrs. Landucci was not of a close or long-continued nature and that personal friendship was not necessarily the sole impelling motive for the ride.

While Mrs. Landucci was not to play a major part in the fashion show, she would necessarily act in a supporting capacity, and her interest in the show was presumably active, not only because she might be called upon to play a part, but because she would thereby learn the method and manner of conducting such shows. Mrs. Tucker was to take a leading part in making preparations for the show, and she carried with her in her purse at the time of the accident a sheaf of notes necessary for making final arrangements; the discussion over dinner undoubtedly would have cut down the time necessary for the preparations on Sunday, or may have made such meeting entirely unnecessary.

The jury could reasonably infer from all of the facts before them that being present at the discussion of the fashion show with the two other women would not only help to consolidate Mrs. Landucci's position with her superior in the store, but would enable her better to perform her participating duty and would give her experience in handling such a show and thus qualify her for advancement. She was a good saleswoman who liked to move merchandise and make a ‘good book,’ and she not only pleased her superior by taking Mrs. Tucker with them, but would learn a good deal about the business of the store.

It would appear that respondent gave consideration to Mrs. Castle, her superior in the department store, for the ride. Mrs. Castle was in charge of the coming fashion show; she depended on respondent to help her make the plans for the exhibition of the goods. Respondent carried with her to the dinner meeting notes as to the materials which were to be exhibited. And it cannot be said as a matter of law that Mrs. Landucci did not receive compensation for the ride in view of her participation with the other two in the business of the store, her desire to please the superior upon whose good opinion her status and future welfare depended and the expected part she would be called upon to play in the coming fashion show.

It was for the jury to determine, under proper instructions, whether the plaintiff gave consideration for the ride, and was therefore a passenger to whom the driver owed the duty of ordinary care.

Two issues were submitted to the jury; one should have been determined as a matter of law by the court, the other was properly given to the jury. Appellant argues that the trial court committed reversible error in submitting the issue of wilful misconduct contrary to a proposed instruction offered by the appellant.

We feel that the point is good and that the judgment must be reversed. It is impossible to know what was the reasoning of the jury in making its decision; in passing on the conflicting evidence with respect to the existence of the passenger relationship, the jury may have determined that the trip was a purely social affair and that no consideration was given for the ride, and at the same time they may have erroneously decided that the defendant was guilty of wilful misconduct. This case is not factually identical with Gillespie v. Rawlings, supra, 49 Cal.2d 359, 317 P.2d 601, where the Supreme Court held that while there was no proof of wilful misconduct and that issue should not have been submitted to the jury, still the plaintiff had proved that compensation had been given for the ride and that the judgment in favor of plaintiff should be affirmed; the rationale of the holding was that the conclusion that plaintiff was a passenger rather than a guest flowed from facts as to which there was no substantial dispute. In the present case, as we have seen, there was a substantial dispute to be resolved by the jury under proper instructions as to whether the plaintiff did, in fact, give consideration for the ride, or whether the ride was a purely social event.

We believe that the error was prejudicial (Huebotter v. Follett, 27 Cal.2d 765, 167 P.2d 193; Edwards v. Freeman, 34 Cal.2d 589, 212 P.2d 883; Burks v. Blackman, 52 Cal.2d 715, 344 P.2d 301; Schaffer v. Claremont Country Club, 168 Cal.App.2d 351, 336 P.2d 254, 337 P.2d 139; Barrett v. City of San Jose, 161 Cal.App.2d 40, 325 P.2d 1026; Christensen v. Bocian, 169 Cal.App.2d 223, 336 P.2d 1018.)

The judgment is reversed.


FN1. This limitation of liability is now contained in section 17151 of the Vehicle Code..  FN1. This limitation of liability is now contained in section 17151 of the Vehicle Code.

2.  Now section 17158 of the Vehicle Code.

CONLEY, Presiding Justice.

BROWN and STONE, JJ., concur.