McCANN v. HOFFMAN (1936)

Plaintiffs, who are husband and wife, sought to recover damages arising out of personal injuries sustained by plaintiff Audrey McCann on August 4, 1934. At the close of plaintiff's case, a motion for nonsuit was made by defendants Clifford P. Hoffman and Claire Hoffman upon the ground that the evidence affirmatively showed that plaintiffs were riding as guests of said defendants and that there was no evidence to show any willful misconduct in the operation of the automobile of said defendants. The trial court made its order granting said motion for nonsuit and from the judgment entered thereon, plaintiffs appeal.

Appellants contend that the trial court erred in granting said motion for nonsuit, but in our opinion this contention is without merit. It is first argued that there was substantial evidence to show that appellants were not guests within the meaning of the guest statute (California Vehicle Act, § 141 3/4; Stats. 1931, p. 1693). The uncontradicted evidence shows that the two couples were on a pleasure trip intending to spend a few days at Rio Del Mar. Assuming, without deciding, that there was sufficient evidence to show that the parties had agreed to share the expenses of operating respondent's automobile, as well as other expenses of the trip, such evidence was insufficient to support a finding that appellants were not the guests of respondents while riding in respondent's automobile. Rogers v. Vreeland (Cal.App.) 60 P.(2d) 585. Appellants concede that the cited case is contrary to the position taken by them, but they argue that “the decision is an incorrect application and interpretation of the statute.” They criticize the decision for its failure to refer to other decisions of the courts of this state, which decisions are cited in support of appellants' argument. Lerma v. Flores (Cal.App.) 60 P.(2d) 546; State Compensation Insurance Fund v. Dalton, 13 Cal.App.(2d) 284, 56 P. (2d) 962; Piercy v. Zeiss, 8 Cal.App.(2d) 595, 47 P.(2d) 818; Haney v. Takakura, 2 Cal.App. (2d) 1, 37 P.(2d) 170; Riley v. Berkeley Motors Inc., 1 Cal.App.(2d) 217, 36 P.(2d) 398; Woodman v. Hemet Union High School Dist., 136 Cal.App. 544, 29 P.(2d) 257; Sumner v. Edmunds, 130 Cal.App. 770, 21 P.(2d) 159; Sullivan v. Richardson, 119 Cal.App. 367, 6 P.(2d) 567; Smith v. Fall River Joint Union High School Dist., 118 Cal.App. 673, 5 P. (2d) 930; Crawford v. Foster, 110 Cal.App. 81, 293 P. 841. We are of the opinion that the holding in Rogers v. Vreeland, supra, is sound and that all of the above–mentioned cases are clearly distinguishable. The Rogers Case, like the case before us, involved facts showing that the injured party was riding in the automobile on a trip taken by the parties solely for their pleasure. It is sufficient to point out that the cases cited by appellants involved either facts showing that the injured party was riding in connection with some business transaction or facts showing that the injured party was riding more as a matter of right rather than as a matter of hospitality. In the present case, appellants were not riding with respondents in connection with any business transaction, nor were they riding with respondents as a matter of right. Appellants were invited by respondents to accompany them on this pleasure trip, and the mere fact that appellants may have agreed, expressly or impliedly, to pay a portion of the operating costs of the car, was insufficient to destroy their status as guests of respondents. Rogers v. Vreeland, supra, and cases cited therein.

Appellants further argue that even assuming that they were guests of respondents, there was sufficient evidence to go to the jury on the issue of alleged willful misconduct of respondent Clifford P. Hoffman. The parties left San Mateo for Rio Del Mar, and said respondent drove at less than 45 miles per hour until he turned off the main highway onto Fremont avenue. He then gradually increased his speed, and there was evidence to show that he was driving 60 miles per hour at the time of the accident. Said accident occurred at the intersection of Fremont avenue and Grant road, which intersection is completely surrounded by orchards. Despite the alleged speed, no objection was made thereto or to the manner in which the car was being driven. The testimony showed that said respondent was driving in a straight line on the right–hand side of the road and appellant John McCann testified that said respondent was “looking straight ahead as he was driving toward the intersection.” The collision occurred at said intersection when respondents' car struck another automobile which was traveling at about 40 or 50 miles per hour along Grant road. Appellant John McCann further testified that there was no diminution of the speed of either car until just before the collision when said respondent applied the brakes hard and swerved slightly to the left. Said appellant also claimed that he saw the other car through the trees when respondents' car was about 75 yards from the intersection. On the taking of his deposition, he testified that this distance was only 100 feet, but, in any event, he did not warn said respondent of the danger. There was no evidence to show that said respondent even knew of the presence of the other car until just before entering the intersection. Appellants lay stress upon the pleadings to show that said respondent admitted seeing the other car “as he approached said intersection.” This admission, however, is of no consequence, as said respondent was approaching said intersection up to the time he entered it, and there is no indication as to the exact time or place to which the pleadings relate. It was stipulated upon the trial that the intersection was one at which the driver's view was obstructed within the meaning of section 113 of the California Vehicle Act (St.1923, p. 553, § 113, as amended by St.1931, p. 2120), and that there was a sign on Fremont avenue, approximately 275 feet west of the intersection, indicating a speed limit of 15 miles per hour. There is nothing in the record, however, to show that said respondent saw said sign or that he even knew of the presence of the cross–road until just before entering the intersection.

While the foregoing evidence would have been sufficient to sustain a finding of negligence, we are of the opinion that said evidence was wholly insufficient to go to the jury on the issue of willful misconduct. McLeod v. Dutton, 13 Cal.App.(2d) 545, 57 P.(2d) 189; Horn v. Volko, 13 Cal.App.(2d) 582, 57 P.(2d) 175; Hall v. Mazzei (Cal.App.) 157 P.(2d) 948; Weir v. Lukes, 13 Cal.App.(2d) 312, 56 P.(2d) 987; Halter v. Malone, 11 Cal.App.(2d) 79, 53 P.(2d) 374; Parrett v. Carothers, 11 Cal.App.(2d) 222, 53 P.(2d) 1023; Newman v. Solt, 8 Cal.App.(2d) 50, 47 P.(2d) 289; Ceikin v. Goldman, 5 Cal.App.(2d) 162, 42 P.(2d) 719; Lennon v. Woodbury, 3 Cal.App. (2d) 595, 40 P.(2d) 292. It would serve no useful purpose to review the facts in the cited cases or other cases on the subject, as it has been frequently stated that each case must stand upon the particular facts involved therein. We may state, however, that the showing made here was not as strong as that made in McLeod v. Dutton, supra, in which this court reversed a judgment in favor of plaintiff. In their reply brief appellants indicate that they do not agree with the decisions in some of the cases above cited, but, be that as it may, we are satisfied that both reason and authority support the trial court's ruling that the evidence in the present case was insufficient to show willful misconduct on the part of said respondent.

The judgment is affirmed.

SPENCE, Justice.

We concur: NOURSE, P. J.; STURTEVANT, J.