PATTON v. LA BREE

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District Court of Appeal, Second District, Division 4, California.

Bernice PATTON, Plaintiff and Appellant, v. Clinton LA BREE, and Friendly Rambler, Inc., a corporation, Defendants and Appellants.

Civ. 26754.

Decided: May 24, 1963

Coleman & Silverstein, Los Angeles, for plaintiff and appellant. Smith & Wilson, Beverly Hills, for defendants and respondents.

This is an appeal by plaintiff from a judgment of dismissal in an action for damages for personal injuries.

In her complaint plaintiff alleged that, on or about November 28, 1961, she took her automobile to defendant Friendly Rambler, Inc., for certain repair work; that she was riding as a passenger in her automobile while it was being driven as part of its servicing by defendant Clinton La Bree, as an employee of defendant Friendly Rambler; that defendants were negligent and as a proximate result of such negligence, an accident occurred with injuries resulting to plaintiff. A general demurrer to the complaint was sustained with leave to amend. Plaintiff declined to amend and appeals from the judgment of dismissal subsequently entered.

As we construe the statute involved, this appeal presents the issue: Is the owner of a vehicle who sustains injury while being driven in the vehicle by a bailee of the vehicle and with the owner's permission, barred from recovery in the absence of intoxication or wilful misconduct on the part of the driver under the provisions of section 17158 of the Vehicle Code as amended in 1961?

Prior to the 1961 amendment section 17158 (formerly section 403 Vehicle Code) read: ‘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 the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the guest during the ride, unless the plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or wilful misconduct of the driver.’

In the cases which discussed the applicability of this section to the owner-passenger situation prior to the 1961 amendment it was concluded that, in the absence of a bailment, or other exception, an owner was not a ‘guest’ in his own automobile and therefore did not fall within the limitations of recovery for injury prescribed by the section. (Ray v. Hanisch, 147 Cal.App.2d 742, 306 P.2d 30; Ahlgren v. Ahlgren, 185 Cal.App.2d 216, 8 Cal.Rptr. 218.)

The legislature in 1961, and prior to the date of plaintiff's injury on November 28, 1961, amended section 17158 to read as follows: ‘No person riding in or occupying a vehicle owned by him and driven by another person with his permission and 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 the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the owner or guest during the ride, unless the plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or willful misconduct of the driver.’

As amended, the statute sets up two classes of persons who can recover only upon a showing of intoxication or wilful misconduct: (1) ‘guests' which, now as before 1961, may include a registered ‘owner’ where complete control of the vehicle, including the right to select riders, had passed by reason of a bailment; (2) ‘owners', not falling within the classification of ‘guests', who ride in their own vehicles while another drives.

We find that to interpret the word ‘owners' in situations involving the second class of persons to include all registered owners, creates serious constitutional questions. Should, for example, an owner be held not entitled to recover from a bailee to whom he has paid consideration, when other persons paying consideration are allowed recovery? If, however, the word ‘owner’ in the 1961 amendment is construed to mean something other than ‘registered owner’ these objections do not arise.

The term ‘owner’ is defined in section 654 of the Civil Code as follows: ‘The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. * * *’ In Pacific Coast etc. Bank v. Roberts, 16 Cal.2d 800, 805, 108 P.2d 439, 442, our Supreme Court stated the proposition thus: ‘The term ‘owner’ is generic and being of general application is therefore frequently applied to one having an interest in or claim upon property less than the absolute and unqualified title. [Citation.] The term frequently depends for its signification upon the connection in which it is used and may concededly include one not holding the legal title. [Citation.]' So, also, in Higgins v. City of San Diego, 131 Cal. 294, 308, 63 P. 470, 476: ‘The term ‘owner’ includes any person having a claim of interest * * * though less than an absolute fee. [Citation.] Anderson's Dictionary cites numerous cases in illustration of the principle that the term may designate the person in actual possession and occupancy of premises.' See, also, Tilden v. County of Orange, 89 Cal.App.2d 586, 201 P.2d 86. In cases of theft, ‘owner’ has been construed to mean a bailee, even where the alleged thief was the title holder. (People v. Cain, 7 Cal.App. 163, 93 P. 1037.)

In the instant case, defendant Friendly Rambler was in possession of the vehicle involved by virtue of plaintiff's bailment to it; it follows therefore, that Friendly Rambler, and not plaintiff, was, at the time of the accident, the ‘owner’ within the meaning of the 1961 amendment. If, therefore, plaintiff was a passenger for a consideration, she was not a ‘guest’ within the meaning of the pre-1961 language and the provisions of section 17158 would not apply to this plaintiff under the circumstances of this case and her complaint would state a cause of action.

A question arises whether plaintiff's complaint which seeks damages for defendant's ordinary negligence, contained the essential allegation that she was a ‘passenger’ and not a ‘guest’ in the automobile at the time of the accident. (Fairman v. Mors, 55 Cal.App.2d 216, 218–219, 130 P.2d 448.)

‘The designations ‘passenger’ and ‘guest’ have been adopted for the purpose of distinguishing a person who has given compensation within the meaning [of the language] of the statute from one carried gratuitously. [Citations.]' (Kruzie v. Sanders, 23 Cal.2d 237, 241, 143 P.2d 704, 705.) In resolving this distinction, ‘* * * the inquiry is whether or not some tangible benefit motivated the driver to furnish the transportation to the rider.’ (Bowman v. Collins, 181 Cal.App.2d 807, 812, 5 Cal.Rptr. 776, 779.)

‘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.)

The benefit conferred may be anticipated or prospective as well as immediate and direct. (Follansbee v. Benzenberg, 122 Cal.App.2d 466, 471, 265 P.2d 183, 42 A.L.R.2d 832.) The question of whether or not a benefit was conferred is a question for the trier of fact. (Martinez v. Southern Pacific Co., 45 Cal.2d 244, 250, 288 P.2d 868.)

Plaintiff alleged in her complaint that defendant La Bree was driving her automobile ‘in the service of said vehicle’ and that plaintiff was a ‘passenger’ at the time of the accident. Although perhaps open to question for lack of complete clarity, we think this allegation sufficient, as against the general demurrer here interposed, to raise the issue of compensation.

The judgment is reversed.

JEFFERSON, Justice.

BURKE, P. J., and KINGSLEY, J., concur.

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