WHITECHAT v. GUYETTE (1940)

This is an action brought by the plaintiffs and respondents Anne Whitechat and David Michael Whitechat, as surviving widow and minor child, respectively, and as the only heirs at law of David Whitechat, deceased, for his alleged wrongful death as the result of an automobile accident involving an automobile owned and operated by the defendant and appellant Ervine O. Guyette. The case was tried before the court with a jury, which returned a verdict in favor of plaintiffs and respondents and against the defendant and appellant in the sum of $8,000. This is an appeal by the defendant and appellant from that judgment.

David Whitechat, aged 25, was killed on August 17, 1938, in the daytime, when the automobile in which he was riding overturned on highway No. 99, about 6 miles north of Fresno. It was a Plymouth sedan, 1933 model. Appellant purchased the car in February, 1938, from a dealer in used cars. At the time of purchase each car wheel was equipped with a used tire and used inner tube. The car was also equipped with a spare tire. All tires were retreads. In response to an inquiry made by appellant, one of the salesmen of the used-car concern said that all of the tires and inner tubes were in good condition. From later observation appellant learned, however, that the spare tire was in bad condition. He made no examination or inspection of the inner tubes. Appellant encountered tire trouble within a short time after purchasing the car. The left rear tire and inner tube were in such bad condition that they were thrown away following a puncture. The spare tire and tube were also thrown away because of their bad condition. Appellant thereupon bought two new tires and tubes and reassembled the tires on the car. The new tires and new tubes were placed on the front wheels. The tire and tube originally on the right rear wheel became the spare, and the tires and tubes originally on the front wheels were shifted to the rear wheels. Appellant made no check as to the condition of the inner tubes at that time. When asked if he had requested the tire people to check the inner tubes he replied: “I don't remember whether I did or not.”

The other occupants of the car besides appellant were David Whitechat, Fred Suglian, Frank Bergon and Harry Bradley. All were members of the Young Men's Institute at Fresno. All but appellant were officers of the organization. He was a member of the executive committee. Bergon was an officer of the grand council. A meeting of the officers of the organization was scheduled at Stockton. The officers riding in the car were the representatives of the organization from Fresno. As a member of the grand council, Bergon was entitled to a fixed sum for mileage from the organization. This he agreed to pay to appellant Guyette for making the trip and carrying the officers to Stockton. Appellant was to receive this payment from the grand council.

While driving on a very warm day at 50 miles an hour on a broad, level, straight and dry highway, appellant encountered tire trouble. The left rear tire apparently went flat gradually. Appellant heard air escaping from the tire but did not apply the brakes on his car. For 300 feet or more he wrestled with the car in an endeavor to keep it on the highway and in its proper traffic lane. The tire ultimately came off the wheel. He lost control of his car. It left the highway, headed for a telegraph pole and overturned. Three of the occupants, including David and appellant, were thrown out of the car. When the car came to a stop it was facing south and the right wheel of the car was on top of David's head. The resulting injury caused his death.

When the accident occurred the inner tube in the left rear tire was “rotten” and in dangerous condition. A section thereof showing five or six patches was exhibited to the jury and admitted in evidence. A demonstration was made to the jury as to the ease with which the inner tube could be torn.

Appellant seeks a reversal of the judgment on the following grounds: (1) “The evidence is insufficient as a matter of law to support a judgment in favor of the plaintiffs and respondents, for the reason that the evidence most favorable to the plaintiffs and respondents shows that as a matter of law, David Whitechat was technically a ‘guest’ and was not a ‘passenger for compensation’, as alleged in plaintiffs' complaint, the plaintiffs' complaint charging the defendant and appellant with negligence and not with either wilful misconduct or intoxication,” citing section 403 of the Vehicle Code, St.1935, p. 154, and McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909. (2) “The evidence is insufficient as a matter of law to support the implied finding of the jury that the defendant and appellant was negligent”, citing Bolin v. Corliss Co., 1928, 262 Mass. 115, 159 N.E. 612; Coppedge v. Blackburn, 15 Tenn.App. 587; and Kemp v. Stephenson, 139 Misc. 38, 247 N.Y.S. 650.

We will discuss these foregoing matters, or points, raised on this appeal, in the order in which they are stated.

All of respondents' testimony as to the status of David Whitechat, in reference to the nature of his occupancy of the car, came from the appellant himself under section 2055 of the Code of Civil Procedure. Pertinent portions thereof are:

“Q. (By Mr. Carter): * Now, you say you were driving these boys up there to that meeting? A. That is right.

“Q. And the Y.M.I. was paying for your gas and oil, and a certain amount of money for driving up there? A. That is right. *

“Q. $5.00? A. Yes, sir.”

Appellant thereafter, in his own behalf, on cross-examination, testified in part as follows:

“Q. (By Mr. Chinello): * it was the president of he organization * that asked you to take your car? A. Yes, sir.

“Q. All right. A. And I told him that working late at night like I had been, that I would be unable to go, because I had work to do. So the discussion went on, still went on and they still had not secured an automobile. So I finally consented to take my automobile, and Frank Bergon got up shortly afterwards and told me he would be willing to give me his expense money, given to him by the Grand Council of the organization, to defray my expenses of driving my automobile to Stockton. However, I got up immediately and told him it was not my interest in taking my automobile to Stockton, by taking my automobile to Stockton, it was being done in the interest of the organization and not for the $5.00, or whatever it was, offered for expense money. He in turn said no, it was being given to him for that purpose, and he wanted it to be used as such. *

“Q. Did you feel that would help you, by going up there anyway? A. I felt that it would help me in this way: these boys were all friends of mine, I had been very close to all of them, and I would do anything for them, and also for the order, and I did it with that intention in mind.”

Respondents argue that the jury may have properly rejected as untrue certain parts of appellant's testimony and in so doing believed that (1) “the trip was not for social or pleasure purposes but was a business trip for the benefit of an organization wherein the participants were interested as officers or members”; (2) “that defendant was to receive money for making the trip and carrying the officers to Stockton”; and (3) “that the money was to be paid by the organization as a business obligation and not as a social amenity”, citing Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 503, 55 P.2d 870; Estate of McConkey, 33 Cal.App.2d 554, 562, 92 P.2d 456; Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183; Prager v. Israel, Cal.Sup., 98 P.2d 729; Walker v. Adamson, 9 Cal.2d 287, 70 P.2d 914; Peccolo v. City of Los Angeles, 8 Cal.2d 532, 66 P.2d 651; Duclos v. Tashjian, 32 Cal.App.2d 444, 90 P.2d 140; Jenkins v. National Paint & Varnish Co., 17 Cal.App.2d 161, 61 P.2d 780; Jensen v. Hansen, 12 Cal.App.2d 678, 55 P.2d 1201; Piercy v. Zeiss, 8 Cal.App.2d 595, 47 P.2d 818; Woodman v. Hemet Union High School District, 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; Crawford v. Foster, 110 Cal.App. 81, 293 P. 841; and Boyson v. Porter, 10 Cal.App.2d 431, 52 P.2d 582.

It is further contended that the main purpose of the trip was the business activity of the organization whereof those participating in the trip were members or officers, and if there were any doubt existing, the issue was a question of fact which was presented for the determination of the jury and its determination was against the contention of appellant. In this respect they cite McCann v. Hoffman, supra, 9 Cal.2d at page 286, 70 P.2d at page 913, to the effect that “the cases indicate, either by a direct holding or by recognition, that where the relationship between the parties is one of business and the transportation is supplied in the pursuit thereof for their mutual benefit, compensation has been given and the plaintiff is a passenger and not a guest.”

It is appellant's contention that the “motivating influence” for furnishing the transportation was not the amount agreed to be paid, but the main purpose was their joint benefit or pleasure and exchange of social amenities, and it is argued that the statement made in McCann v. Hoffman, supra, clearly applies, i.e.: “Therefore, where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given. But it is not given where the main purpose of the trip is the joint pleasure of the participants. The payment of a portion of the expense, as for gasoline and oil consumed on the trip, is merely incidental and does not constitute the moving influence for the transportation. The provocation for the offer of transportation remains the joint social one of reciprocal hospitality or pleasure.”

In considering the first question presented, i.e., whether the deceased was a “guest” or “passenger for compensation” within the meaning of those terms (McCann v. Hoffman, supra, 9 Cal.2d at page 282, 70 P.2d 909), we first find that the respondents in this regard rely upon the testimony of the appellant taken under section 2055 of the Code of Civil Procedure. The respondents herein were not bound by all of the testimony of the witness on the subject and subject to the exercise of legal discretion, the jury was the sole judge of the weight, effect and sufficiency of the evidence to establish any fact for which it might be offered. The jury was the sole judge of the credibility of the witnesses and could believe all of the testimony of this witness or believe a part and reject parts, as it might be convinced of the truth or falsity of such testimony. Lindemann v. San Joaquin Cotton Oil Co., supra, 5 Cal.2d at page 503, 55 P.2d 870. We must remember that on appeal all legitimate and reasonable inferences must be indulged in support of the judgment and when two or more inferences can reasonably be deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. Crawford v. Southern Pacific Co., supra, 3 Cal.2d at page 429, 45 P.2d 183. We are convinced from the evidence produced that it cannot be said that the deceased was, as a matter of law, a guest within the meaning of section 403 of the Vehicle Code. It therefore became a question of fact for the determination of the jury whether or not he was a “guest” or a “passenger for compensation”. Sullivan v. Richardson, supra, 119 Cal.App. at page 370, 6 P.2d 567. To be a passenger does not necessarily imply that there should be a payment in money for transportation. It may be by contract, express or implied, and the contract need not be between the carrier and the passenger, but may be between the carrier and a third person for the passenger. Sullivan v. Richardson, supra. After full argument on the subject before the jury it returned into court to hear the deposition of appellant reread on this subject and also for further instructions in reference thereto. At the suggestion of the trial judge both counsel consented to have read the following instruction: “You are instructed that if you find from a preponderance of the evidence that the motivating influence for the defendant * furnishing transportation to the occupants of his automobile, at the time of the accident, was a social one of reciprocal hospitality and pleasure, then I charge you that the occupants of the defendant's automobile were guests, even if you also find from a preponderance of the evidence that, as an incident to furnishing such transportation, the defendant * did, or was to receive a payment on account of expenses, if such expenses were merely incidental to the operation of his automobile on the trip. *”

After reading section 403 of the Vehicle Code, the court further read the following: “From that code section you will note that the law does not prohibit recovery of damages by any person riding in an automobile for whose ride compensation is being paid regardless of the amount, or of what it constitutes, since it need not be money. With this exception to that code section in mind, you are instructed that the law deems compensation made when compensation is being paid for the transportation by third persons, or when it may be said that the driver receives a direct, tangible benefit from the presence of the passenger. So also compensation is deemed made where a special, tangible benefit to the driver was the motivating influence for furnishing the transportation, or when there was a benefit of a tangible nature being conferred upon the driver by reason of the transportation.”

The determination of the question by the jury cannot be said to be unsupported by the evidence, and the conclusion reached in the cases cited by respondent, supra, support the conclusion here reached. In view of the holding which prevails in this state (Prager v. Israel, supra, 98 P.2d 729), that the so-called “guest laws” are in derogation of the common law, and must be construed strictly, and that cases be not held within the provisions of such statutes unless it clearly appears that it should be so determined, we are impelled to hold adversely to appellant's contention in this respect.

The second contention presents an equally close question. Appellant insists that the record does not establish that he failed to exercise ordinary care, and endeavors to defend on the doctrine of unavoidable accident. We are again confronted with the rule, as admitted by appellant, that in passing upon the merits of an appeal an appellate court will and must accept as true all evidence tending to establish the correctness of the finding or verdict and must consider the evidence in the most favorable aspect towards the prevailing party and give that party the benefit of every inference that can reasonably be drawn in support of his claim. Cope v. Goble, Cal.App., 103 P.2d 598.

Appellant argues that “the Gods of fortune do not smile on all persons equally. As a result, some people do not have the financial wherewithall to buy new automobiles, or in the event they buy used automobiles, to buy new tires and tubes ‘all around’,” and contends that appellant acted as a reasonable and prudent person would act under the same or similar circumstances after buying a second-hand car, and that his failure to dismount the rear tires on the automobile on the chance that he might find that the inner tubes were “lifeless”, was not negligence. It is further argued that the owner of an automobile does not owe an absolute duty to others that his automobile shall be in a safe condition, but he is only bound to use reasonable care to see that his vehicle is in proper condition to use on the highways, citing Bolin v. Corliss Co., supra; Coppedge v. Blackburn, supra; and Kemp v. Stephenson, supra.

Respondents claim that the record supports the finding that appellant was negligent in several respects: (1) That he violated section 679 of the Vehicle Code forbidding the operation of automobiles that are not in safe mechanical condition and which would endanger the driver or other occupant or any person upon the highway; (2) that he violated the speed laws of the state; and (3) that he failed to keep his automobile under control.

As to the first claim, the rule set forth in 2 California Jurisprudence Ten Year Supplement, section 157, page 234, is quoted to the effect that: “The statute declares that it shall be unlawful for any person to drive a vehicle unless it is in ‘such safe mechanical condition’ that its operation on the highway shall not endanger the driver or an occupant of the vehicle or any person upon the highway. ‘It is the duty of one operating a motor vehicle to see that it is so equipped in order that it may at all times be under control and not become a menace to other traffic on the highway.’ Proof having been made that the collision was occasioned by the defective condition of the party's vehicle, the issue as to his responsibility for the happening of the calamity depends upon the showing as to whether he knew or ought to have known of the existence of the defect.”

An instruction to this effect was given in Brandes v. Rucker–Fuller Desk Co., 102 Cal.App. 221, 282 P. 1009, where an automobile left the highway and ran upon a sidewalk and injured a pedestrian due to the breaking of a portion of a steering gear, the evidence tended to show that the vehicle had been used to such an extent that its safety was a matter of doubt. See, also, Coppock v. Pacific Gas & Electric Co., 137 Cal.App. 80, 30 P.2d 549; Smith v. Brown, 102 Cal.App. 477, 283 P. 132; Maus v. Scavenger Protective Ass'n, 2 Cal.App.2d 624, 39 P.2d 209; Rath v. Bankston, 101 Cal.App. 274, 281 P. 1081; Silvey v. Harm, 120 Cal.App. 561, 8 P.2d 570; Dunn v. Shamoon, 37 Cal.App.2d 486, 99 P.2d 1113.

The question then presented is this: Do the facts in the instant case come within the rule which would impose negligence on the part of appellant? The force of the evidence on the mechanical condition of the car was that the left rear tire did not blow out but went flat because the inner tube was “rotten” and in a dangerous condition. A portion of the tube bore evidence of five or six patches. It was incapable of retaining air. The jury saw that portion of the inner tube and saw a demonstration of its condition. That the inner tube was not in a safe condition is not open to doubt.

From the evidence it appears that appellant was told by the salesman of the used car, at the time of the sale, that all of the tires and tubes were in good condition. Observation subsequently informed appellant, however, that the spare tire was in a bad condition, notwithstanding the salesman's statement. A few months after the sale, again notwithstanding the salesman's statement, and after a puncture appellant found that the left rear tire and tube were in such bad condition that they also had to be thrown away. This should have placed appellant upon notice of the fact at least, that the salesman's representation as to those particular tires and tubes was somewhat erroneous and of the added fact that if those tires and tubes were in such bad condition the same might be true of the others.

The added and admitted fact that appellant was operating his automobile, of somewhat ancient vintage, with tires and tubes of the kind described, on a warm day, at 50 miles per hour, may have been prima facie unlawful, and the jury had the right to determine that the operation of the vehicle under the surrounding circumstances, at the excessive speed, constituted negligence. Secs. 511 and 513, Vehicle Code.

The record further discloses testimony given by a witness for the respondents who had been in the automobile tire and garage business for 32 years, and who more or less qualified as an expert on the subject. His evidence substantiates respondents' claim that appellant did not use the proper care in bringing the car to a stop after he sensed the fact that the tube was leaking or that he was having tire trouble. It reads in part as follows:

“Q. (By Mr. Hansen): But I am asking you based upon what you saw, that the marks got wider as they went along, that it appears to you as a tire expert which you say you are, that the air did not leave that tire in just one explosion but went out gradually? A. Gradually, yes, sir. *

“Q. He (Guyette) said in his deposition that he couldn't control it, he was permitting it to stop without applying the brakes? A. Yes, sir.

“Q. As a tire man you would say that was the proper way to stop a car when you have a flat tire? A. No, sir.

“Q. What do you do, put on your brakes? A. No, sir.

“Q. What do you do? A. The minute you feel that tire flat, if you are going very fast, the best thing to do is slow it down a little and then when you come to your crawling speed you will have to release it, and when you get below that again, you put your brakes on again. *

“Q. But you wouldn't say that he did the wrong thing by not using his brakes hard when he felt the tire go down on him? A. Yes, sir, I do. I think that could have been avoided if he had been a little careful in putting them on quickly and using them at the proper time.”

In Brandes v. Rucker–Fuller Desk Co., supra, it was held that if the question of whether or not the automobile was being operated in a careless manner was one from which reasonable minds might draw different conclusions, the determination of the jury that it was being carelessly operated was controlling on appeal.

In view of the finding of the jury on the two subjects presented and the conclusions here reached, we see no valid cause for disturbing the judgment rendered.

Judgment affirmed.

GRIFFIN, Justice.

We concur: BARNARD, P.J.; MARKS, J.