PRAGER v. ISREAL (1939)

Plaintiff had a verdict for $7,500 for injuries resulting in a broken hip-bone. She and the defendant were mutual friends who had been in the habit of taking pleasure drives in defendant's automobile. On a Sunday in June, 1935, defendant called at her place of abode at about two o'clock of the afternoon, and invited her to ride with him. They drove about the city for a couple of hours then parked on a public highway overlooking the ocean beach. They moved from the front to the rear seat of the machine where they ate a lunch prepared by plaintiff. At about five o'clock they agreed to continue their drive and visit a theatre down town. The plaintiff, seated on the right side of the rear seat, opened the door on that side of the car and stepped to the ground, intending to again seat herself in her former position on the front seat. At the same time defendant alighted on the left side to resume his position as driver. As the plaintiff had one foot on the ground and one on the running board, the car moved forward and she fell to the ground. She filed four complaints, the first charging wilful misconduct on the part of the defendant, and the third amended complaint charging that the injuries were caused by defendant's negligence in “failing to set and apply the brakes on said automobile”. The answer pleaded specially the guest relation between the parties and denied that there was any wilful misconduct on the part of defendant.

Several grounds are urged for a reversal of the judgment, but we will confine our discussion to this issue of the guest relationship as our conclusion upon that issue requires a direction of judgment for the appellant.

Throughout the trial the presiding judge took the position that this relation did not exist because the automobile was not “moving upon” a public highway at the time, and for this reason refused to permit counsel for appellant to argue or present the issue to the jury, and refused to instruct the jury on the application of this statute. The ruling was based upon the first portion of section 1413/434 of the California Vehicle Act (St.1931, p. 1693), which was the applicable statute at the time the injuries were incurred. This portion of the section read: “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”. The court overlooked the last portion of the section which read: “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”.

Where a party accepts a ride in the conveyance of another he is either a paying passenger or a “guest passenger”. A paying passenger has been defined as one who travels in a conveyance by virtue of a contract, express or implied, as to the payment of fare, or that which is accepted as an equivalent. (4 R.C.L. 1002; 10 Am.Jur. sec. 953, p. 26; 4 Cal.Jur. 899.) A guest passenger, as applied to motor vehicle carriage, was defined in the applicable statute as “a person who accepts a ride in any vehicle without giving compensation therefor”. Italics ours.

The cases involving liability of common carriers are uniform in holding that the passenger relation once established continues to exist while the passenger is engaged in alighting from the conveyance and until he has had a reasonable time to reach a place of safety. (4 Cal.Jur. 901; 10 Am.Jur. sec. 1004 p. 53.) Thus, when a party “accepts a ride” in another's motor vehicle he is a passenger for the duration of the ride, and whether he is a “guest” or a paying passenger depends upon whether he has paid compensation for the ride. But, as one who accepts a ride upon a common carrier and pays his fare is still a passenger until he reaches his destination and has a reasonable opportunity to alight in safety, so one who accepts a ride without compensation is still a guest passenger until he may alight in safety.

We can attach no importance to the use of the word “moving” in the portion of the section quoted. The legislature had had some difficulties in defining the terms “automobiles”, “motor vehicle” and “vehicle” in other portions of the act. The expression “any vehicle moving upon any of the public highways” was apparently used to limit the word “vehicle” to those only which used the public highways, but to extend it to include all vehicles so moving, though they may not be self-propelled motor vehicles as these are defined in the act. It is obvious that it was not inserted with the intention of altering the well settled rules governing the passenger-carrier relation above referred to. It would be absurd in the extreme to hold that one who has accepted a ride with another, and had thus become his guest, immediately changed to a paying passenger or a mere trespasser as soon as the wheels of the car stopped turning at a highway intersection, or when the parties have voluntarily stopped for gas, lunch or similar conveniences. The party becomes a guest by accepting “the ride” and is still a guest, or passenger, as the case may be, as long as he is riding in the vehicle and until he has had a reasonable opportunity to alight in safety. But, if we were to adopt the rule of strict construction of this statute for which respondent contends on the authority of McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909, and similar cases, it would not avail her. The statute refers to vehicles “moving upon any of the public highways” and to guests injured “while so riding”. Here the conceded facts are that the vehicle was moving on the highway at the time of the injury and that respondent was riding on the running board at the time. The statute does not require that the driver shall be in the front seat with his hands on the steering wheel and his foot on the accelerator. Nor does it require that the guest be seated upon one of the cushioned seats provided for that purpose. The strict construction of the statute which would require that the vehicle be moving at the time cannot legislate into the statute any particular manner of movement or any particular method or form of riding. And, since the respondent concedes that these elements of the statute were present, her case falls clearly within the terms of the statute as written. This court must take it as written.

Respondent relies upon Moreas v. Ferry, 135 Cal.App. 202, 26 P.2d 886, but the distinction is clear. There the plaintiff had accepted a ride as a guest and without compensation, but, after the parties had reached their destination and were preparing to return home, the defendant was unable to start his car and asked the plaintiff to “crank” it for him. In performing this service the plaintiff was injured, and the court, apparently basing its ruling on the theory that this was a service to the owner, held that the passenger was not then a guest “without compensation”. Similar authorities in this and other jurisdictions might be cited where the question of what is “compensation” under these statutes has arisen, among which are McCann v. Hoffman, supra, page 285, 70 P.2d 909; Walker v. Adamson, 9 Cal.2d 287, 70 P.2d 914; Christ v. O'Neil, Cal.App., 83 P.2d 96. But the respondent concedes that no compensation was paid for the ride, and such concession brings her squarely within the statute. No evidence has been offered to show wilful misconduct, and that claim having been abandoned in the amended complaint, it follows that respondent has not made a case for recovery under the statute. For these reasons the motion for a directed verdict should have been granted.

The judgment is reversed, and the cause is remanded with directions to enter judgment for the defendant.

NOURSE, Presiding Justice.

I concur: STURTEVANT, J. I concur in the judgment: SPENCE, J.