DONNELL v. MULLANEY

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Court of Appeal, Fourth District, Division 2, California.

Margaret H. O'DONNELL and George O'Donnell, Plaintiffs and Appellants, v. William Francis MULLANEY et al., Defendants and Respondents.

Civ. 8084.

Decided: January 17, 1967

Jones & Weldon, Compton, by H. H. Hegner, Lynwood and Ronald L. Goldman, Beverly Hills, for plaintiffs and appellants. Cushman & Grover, Los Angeles, and Daniel O. Howard, Huntington Beach, for defendants and respondents.

OPINION

The factual background of this action is presented in the form of a settled statement which indicates that on Saturday afternoon, July 20, 1963, Peggy O'Donnell and defendant William Francis Mullaney, both of the age of 18 years, attended a picnic sponsored by a sports car club in Orange County, California Late in the afternoon, defendant invited Peggy for a ride in his Model 1955MG. Peggy accepted the invitation, which was entirely social in nature, with no tangible benefits or monetary consideration involved. From the picnic site the defendant drove onto a public highway, and after proceeding on the public thoroughfare for a distance slightly in excess of one mile, he turned onto a private road known as ‘Mobil Oil Lease Road’ near the city of Brea. The young man had never before driven on the private road and was unfamiliar with the general geographic area. The road was rather narrow and winding in nature and ran up and around the foothills in a vicinity above the location of the picnic site. After driving 1/2 mile on the private road, defendant came upon a very sharp curve and was unable to negotiate the turn. His sports car left the road's surface and plummeted several hundred feet down the side of an adjoining cliff. Peggy sustained fatal injuries in the descent of the vehicle down the precipice.

Plaintiffs are the natural mother and stepfather of the minor decedent. The trial court refused proffered jury instructions on the doctrines of negligence and res ipsa logitur, ruled that Peggy was a ‘guest,’ and rendered instructions on the liability issue based solely on the doctrine of willful misconduct. The jury returned a verdict in favor of defendants.

The sole issue to be determined on appeal is whether the ‘Guest Statute’ as embodied in section 17158 of the Vehicle Code is applicable to a situation when a social occupant of a vehicle is killed or injured as a result of the negligence of the driver when the vehicle is being operated on a private roadway as distinguished from a public highway.

Section 17158 of the Vehicle Code, popularly referred to as the ‘Guest Statute,’ provides 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 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.’ [Emphasis added.]

The salient issue is whether or not the word ‘highway’ as contained in the quoted section embraces a private roadway or is confined to a public road or street.

“Highway' is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.' (Veh. Code, § 360.)

“Street' is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Street includes highway.' (Veh. Code, § 590.)

‘A ‘roadway’ is that portion of a highway improved, designed or ordinarly used for vehicular travel.' (Veh. Code, § 530.)

“Private road or driveway' is a way or place in private ownership and use for vehicular travel by the owner and those having express or implied permission from the owner but not by other members of the public.' (Veh. Code, § 490.)

The guest statute constitutes an exception to the common law rule that a negligent driver is responsible for injury or death proximately caused by his negligence, and such enactment, being in derogation of the common law, must be strictly construed. (Prager v. Isreal, 15 Cal.2d 89, 93, 98 P.2d 729; Ahlgren v. Ahlgren, 185 Cal.App.2d 216, 223, 8 Cal.Rptr. 218.) However, it is likewise a fundamental rule of statutory construction that laws be given a reasonable interpretation that will promote rather than defeat the general purpose and policy of the statute. (See Select Base Materials v. Board of Equalization, 51 Cal.2d 640, 645, 335 P.2d 672; People v. Centr-O-Mart, 34 Cal.2d 702, 704, 214 P.2d 378; Dickey v. Raisin Proration Zone No. 1, 24 Cal.2d 796, 802, 151 P.2d 505, 157 A.L.R. 324; Department of Motor Vehicles of Cal. v. Ind. Acc. Comm., 14 Cal.2d 189, 195, 93 P.2d 131; Ivens v. Simon, 212 Cal.App.2d 177, 181–182, 27 Cal.Rptr. 801; City of Los Angeles v. Pac. Tel. & Tel. Co., 164 Cal.App.2d 253, 256, 330 P.2d 888; In re Lynwood Herald American, 152 Cal.App.2d 901, 909, 313 P.2d 584.) Where the language of a statute is reasonably susceptible of two constructions, one of which in application will render it reasonable, fair, and harmonious with its manifest purpose, and another which would be productive of absurd consequences, the former construction will be adopted. (Department of Motor Vehicles of Cal. v. Ind. Acc. Comm., supra, 14 Cal.2d 189, 195, 93 P.2d 131; City of Los Angeles v. Pac. Tel. & Tel. Co., supra.) The Legislature primarily intended by its enactment of the guest law to prevent recovery for ordinary negligence by a guest in an automobile who has accepted the hospitality of the owner or driver (Martinez v. Southern Pacific Co., 45 Cal.2d 244, 253, 288 P.2d 868; Kruzie v. Sanders, 23 Cal.2d 237, 242, 143 P.2d 704; Bowman v. Collins, 181 Cal.App.2d 807, 814, 5 Cal.Rptr. 776); secondarily, it intended to prevent collusive suits between friends where the driver admits negligence in order to shift the burden to his insurance carrier. (Stephan v. Proctor, 235 Cal.App.2d 228, 230, 45 Cal.Rptr. 124; 26 Cal.L.Rev. 251, 252.)

Under the common law, a driver who transported a guest was required to exercise reasonable care for the rider's safety, and was liable for injury sustained by the guest resulting from the negligence of the driver. (See 7 Cal.Jur.2d Automobiles, § 333.) The duty at common law which a driver owed to his guest has been modified by statute to limit the degree of care which a driver must exercise toward his guest. Under the present statute, a guest cannot recover against a driver for personal injury unless the guest establishes that the injury was proximately caused by the driver's intoxication or willful misconduct. (Fairman v. Mors, 55 Cal.App.2d 216, 218, 130 P.2d 448.)

The Legislature was induced to act to remedy the injustice of circumstances in which generous drivers, by accommodating guest passengers, were held responsible in cases which were decided on the basis of close questions of negligence. (Crawford v. Foster, 110 Cal.App. 81, 87, 293 P. 841.) The guest statute is not concerned with a relationship growing out of a contract, but with construing a statute for the purpose of denying a certain group of passengers a right of recovery for injuries resulting from negligence, a recovery to which they were entitled before the enactment of the guest statute. (McCann v. Hoffman, 9 Cal.2d 279, 282–283, 70 P.2d 909.)

A history of the Guest Statute as it has existed in California reflects that the initial act was adopted in 1929. Section 141 3/4 of the California Vehicle Act, originally provided, inter alia, as follows:

‘Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways of the State of California, and while so riding as such guest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such vehicle. * * *’ [Emphasis added.]

‘Nothing in this section contained shall be construed as relieving the owner or driver or person responsible for the operation of a vehicle from liability for injury to or death of such guest proximately resulting from the intoxication, wilful misconduct, or gross negligence of such owner, driver or person responsible for the operation of such vehicle; provided, that in any action for death or for injury or damage to person or property by or on behalf of a guest or the estate, heirs or legal representatives of such guest, the burden shall be upon plaintiff to establish that such intoxication, wilful misconduct or gross negligence was the proximate cause of such death or injury or damage.

‘For the purpose of this section the term ‘guest’ is hereby defined as being a person who accepts a ride in any vehicle without giving compensation therefor.' (Cal.Spats.1929, c. 787, pp. 1580–1581.) In 1931 the Act was amended but such amendment did not affect the quotation embodied herein. Basically, the amendment eliminated gross negligence as a basis for liability of an automobile owner or driver, which made it necessary for the guest to establish either intoxication or willful misconduct on the part of the owner or driver. (Cal.Stats.1931, c. 812, p. 1693.)

In 1935 the Guest Statute was codified in section 403 of the Vehicle Code, and at the time of the codification provided 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.] (Veh.Code, 1935, § 403 [Cal.Stats.1935, c. 27, p. 154].) The language ‘moving upon any of the public highways of the State of California and while so riding as such guest receives or sustains an injury’ was eliminated in the 1935 codification.

In 1959 section 403 of the 1935 Vehicle Code was recodified in substantially identical form as section 17158 of the present Vehicle Code (Cal.Stats.1959, c. 3, p. 1655).

In 1961 the Code was again amended, but such amendment only affected persons riding in a vehicle of their own driven by a third party with the owner's permission and, obviously, such amendment has no bearing on the issue now before us. (Cal.Stats.1961, c. 1600, p. 3429, § 1.)

It should be emphasized that the primary variance of importance to this decision between the 1929 Act as embodied in section 141 3/4 of the California Vehicle Act and the existing statute, as contained in section 17158 of the Vehicle Code, related to deletion of the following language by the 1935 codification:

‘* * * moving upon any of the public highways of the State of California and while so riding as such guest receives or sustains an injury.’

In lieu of this language, the phraseology ‘upon a highway’ and ‘during the ride’ was substituted. In other words, the 1935 enactment of the Vehicle Code, section 403, and the present section 17158 of the Vehicle Code are identical with respect to the question presented in this case. Apparently by eliminating the phrase ‘moving upon a public highway’ and extending the applicability of the guest statute to a guest who accepts a ride in a vehicle ‘upon the highway’ and who is injured ‘during the ride,’ the Legislature intended to apply the guest statute to circumstances not involving motion at the time of the accident. (Prager v. Isreal, supra, 15 Cal.2d 89, 94, 98 P.2d 729; Boyd v. Cress, 46 Cal.2d 164, 168, 293 P.2d 37.)

Plaintiffs maintain that the phrase in the Guest Statute: ‘accepts a ride in any vehicle upon a highway,’ limits the application of the statute solely to accidents occurring on a public highway. However, an analysis of the statute indicates the following persons are denied recovery under the guest statute for damages sustained by an occupant against the driver of a vehicle on account of personal injury or death sustained by the occupant during the ride: (a) the owner of a vehicle driven by another with his permission; (b) any person who as a guest accepts a ride in any vehicle upon a highway without giving compensation; and (c) any other person. (See Boyd v. Cress, supra, 46 Cal.2d 164, 293 P.2d 37; Veh.Code, § 17158.)

The phrase in the present guest statute ‘during the ride’ simply means the guest must sustain injury sometime after the ride commences but before the ride concludes. (Boyd v. Cress, supra, 46 Cal.2d 164, 167, 293 P.2d 37.) The ride extends from the time a guest enters until he leaves the automobile. Trigg v. Smith, 246 Cal.App.2d 510,1 54 Cal.Rptr. 858. The fact that ‘during the ride’ the vehicle temporarily departs form a public highway, or the ride commences or terminates at a place other than on a public highway, represents a fortuitous circumstance without relation to the purpose of the guest statute which is to protect the host-driver against liability for ordinary negligence.

As between phrases ‘upon a highway’ and ‘during the ride,’ the latter phrase must be held to predominate over the former when the two phrases conflict so long as the guest status is maintained. This is in accord with the principle of statutory construction that a statute should not be construed so as to defeat its manifest purpose.

The growing practice of retail concerns, banks, supermarkets, amusement centers, churches, and other organizations to maintain large parking facilities for public conven- ience, although privately-owned, has presented the issue as to whether traffic control statutes are applicable to private parking lots. The policy of the courts in the criminal field reflects that criminal statutes should not be restricted in application to public highways in the absence of a clear legislative intent to do so because of the necessity of protecting the public from accidents occurring on private property used by a large number of individuals, as well as accidents occurring on public roadways. (See State v. Gallagher, 102 N.H. 335, 156 A.2d 765, 77 A.L.R.2d 1167.) Where a statute establishes a criminal offense in connection with the operation of a motor vehicle and such statute makes no reference to an offense occurring on a public highway, the statute is gen- erally held to apply throughout the state, including private ways and premises. (See State v. Gallagher, supra; 7 Am.Jur.2d 724, Automobiles and Highway Traffic, § 169.)

In civil actions involving motor vehicle accidents, it has been the ordinary rule that statutory travel regulations or rules of the road have no application to the conduct of traffic on private ways or premises. (See 7 Am.Jur.2d 723, Automobiles and Highway Traffic, § 169.) However, the great weight of authority in foreign jurisdictions would indicate that in the absence of language in the guest statute indicating any intention to restrict the operation of the statute to public highways, that such guest statutes are applicable where the motor vehicle in which a guest was being transported was, at the crucial time of the accident, being operated on a private way or on private property. (Fishback v. Yale (Fla.), 85 So.2d 142; Kitchens v. Duffield, 149 Ohio St. 500, 79 N.E.2d 906, 37 Ohio Ops. 200; Recket v. Hutchinson, 49 Wash.2d 888, 308 P.2d 235, 64 A.L.R.2d 691; Kilgore v. U-Drive-It Co., 149 Ohio St. 505, 79 N.E.2d 908.)

Consequently, based upon principles of public policy, statutory construction, and foreign stare decisis, the decedent herein was a guest at the time of her demise within the meaning of section 17158 of the Vehicle Code even though at the time of the accident which resulted in her demise the vehicle was being operated on a private roadway.

Judgment affirmed.

FOOTNOTES

FN1. 246 A.C.A. 583, 586..  FN1. 246 A.C.A. 583, 586.

KERRIGAN, Justice.

McCABE, P. J., and TAMURA, J., concur.

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