HUEBOTTER v. FOLLETT (1945)

Plaintiff brought this action to recover damages for personal injuries sustained by him when the automobile in which he was riding, and which was owned and operated by defendant, collided with a parked truck. The driver of the truck was joined as a defendant under a fictitious name but was not served with summons and complaint, and did not appear in the action. Trial was by jury, and the verdict was in favor of defendant. Plaintiff appeals from the judgment on the verdict, and contends that the instructions were inadequate, confusing and prejudicially erroneous.

The evidence shows that plaintiff and defendant were cousins and had been friends for many years. Plaintiff, defendant and one Wilson were employed at Los Angeles Harbor. Plaintiff was a foreman supervising steel processing, and defendant and Wilson worked under his supervision. The three men went to and from their work in the same automobile. They worked 6 days per week, and each man drove his automobile 2 consecutive days each week, calling for the other two men in the morning at their homes, and returning them to their homes at night. On the day of the accident, Friday, March 27, 1942, it was defendant's turn to drive his automobile. He called for plaintiff and Wilson, at the regular time, in his 1939 Oldsmobile coupe. They proceeded toward the harbor along the same route which they had followed each morning. The accident occurred on a Los Angeles River bridge, on Atlantic Boulevard, a state highway in Los Angeles County. (That site is not in a business or residential district.) There is a curve in said highway about 240 feet north of the bridge, and from the curve to the approach to the bridge the highway is straight except for a slight bend in the highway at the approach to the bridge. The highway is 60 feet wide at the curve, 40 feet wide between the curve and the bridge, and 60 feet wide on the bridge. The bridge is about 500 feet long, extends approximately north and south, and has an incline upward of 12 to 15 feet from the north end to the middle of the bridge. The highway over the bridge has a double white line in the center, and on one side of the double line there are two traffic lanes for southbound vehicles and on the other side there are two traffic lanes for northbound vehicles. The two inside traffic lanes, adjoining the double line, are each 10 feet wide, and the two outside traffic lanes are each 20 feet wide. Defendant was proceeding in the outside lane for southbound vehicles, which will be referred to herein as lane 1, and another automobile was proceeding in the inside lane for southbound vehicles, which will be referred to herein as lane 2. The truck, a Ford with a stake body, was parked on the bridge, about 189 feet from the north end of the bridge, at an angle in lane 1, with the right front wheel about 2 feet from the west curb and the left rear corner of the truck about 15 feet from the west curb. The left rear wheel was not on the truck (the truck driver had taken the wheel off to have the tire repaired). The accident occurred about 6 a. m., before daylight, and the headlights of defendant's automobile were lighted. As defendant approached the truck, he swerved to the left about 5 feet but was unable to pass the truck without colliding with the automobile in lane 2, and the right side of his automobile collided with the left rear portion of the parked truck, causing the injuries to plaintiff. It is undisputed that the truck was parked in violation of the Vehicle Code; and that defendant could not have swerved to the right without striking the right curb or bridge structure.

Plaintiff testified that as they came out of the curve they were in a straight line of vision with the bridge, and he noticed an object on the bridge outlined against the skyline; that he could not determine the shape of it—he could not ‘see from the light that was there’; that ‘there was a sort of an overcast that morning’; that he did not recall seeing any lights on either side of the highway; that he never ‘did actually identify the object on the bridge’—he ‘never tried to identify’ it ‘because he realized it was stopped,’ and he ‘was more interested in the car that was alongside’ of them, as they ‘would be forcibly put into it’ unless they ‘got a chance to get out of there’; that when he first noticed the object they were about 200 feet away from the north end of the bridge; that he first saw the object when they were about 400 feet from the north end of the bridge—that it was then approximately 600 feet away; that after he saw the object they traveled about 300 feet and then he (plaintiff) said, ‘Look out, Bud’; that he turned to defendant but defendant did not seem to be paying any particular attention to the object, and he seemed to be looking at the car to their left; that when he (plaintiff) said, ‘Look out, But,’ they were approximately 100 feet from the north end of the bridge; that defendant seemed to freeze at the wheel and his automobile seemed to gain momentum; that defendant did not put his brakes on at any time before the impact; that when they were about 200 feet from the bridge he looked at defendant's speedometer and they were traveling 55 miles an hour; that he did not form any estimate of the speed at which defendant was traveling at the time of the collision except he did not ‘recall any slackening of speed at any time’ after he looked at the speedometer. On cross-examination plaintiff testified that he did not say (on direct examination) that defendant accelerated his speed—that defendant ‘didn't seem’ to change his speed or ‘to do anything’; that he (plaintiff) ‘realized they were in a jackpot’ unless defendant could ‘bring the thing to a stop.’ He further testified that he drove his automobile to work on Mondays and Tuesdays and took Wilson and defendant with him; that Wilson drove his automobile on Wednesdays and Thursdays, and defendant drove his automobile on Fridays and Saturdays; and that it was their general practice to drive their automobiles on those days but sometimes they changed to other days. A map of the bridge and vicinity was received in evidence and plaintiff marked thereon the position of defendant's automobile when he (plaintiff) first saw the truck, which was at a point approximately 600 feet from the truck.

Wilson testified that he was riding in defendant's automobile on a share-the-ride basis; that at the time plaintiff said, ‘Look out, Bud,’ he (the witness) noticed a ‘dark object on the bridge’ when they ‘got into the turn going onto the bridge’; that they were between 300 and 425 feet from the truck when he first saw it; that he did not pay ‘any particular attention’ as to what defendant's speed was, but he ‘should judge around 45, between 45 and 50’; that defendant's automobile was 175 to 250 feet from the bridge when plaintiff gave the warning, and it seemed that defendant then increased his speed; that he got the impression defendant increased his speed after said warning because they ‘got up to that truck awful fast’; that he did not observe defendant put on his brakes; that afterward he ‘noticed that as he [defendant] applied his brakes,’ they ‘stayed right with that car there [in lane 2] for awhile’; that it seemed defendant ‘was going to pass it,’ and he (the witness) knew if they ‘got by ourselves it would be all right,’ but it seemed to him defendant was ‘going kind of fast’; that defendant tried to swing around the truck; that at the time they collided they were traveling ‘closer to 50 miles an hour’; that he was certain it was dark when the accident occurred; that the truck and defendant's automobile were touching after the accident; that after the impact defendant's automobile went forward about 3 feet; that ‘the truck was moved some’; that defendant had good lights on his automobile; that plaintiff did not seem excited when he said, ‘Look out, Bud’; and that the automobile reached the truck ‘just like that (snap of the fingers).’ Later in the day the witness was recalled by counsel for plaintiff who stated that the witness wished to correct a mistake in his previous testimony. The witness then testified to the effect that he had been misled in his testimony by counsel for defendant who had snapped his fingers—that from the time he saw the truck to the time of the collision it was longer than a snap of the fingers; that several seconds elapsed—he ‘would say about ten or eleven seconds.’ On cross-examination, at the request of counsel for defendant, the reporter read the question and answer in connection with the snapping of fingers, after which said counsel stated, ‘Now, you see from that that the snap of the fingers was started by you, Mr. Wilson, and it didn't come from me,’ to which the witness replied: ‘I didn't recall that; I had it in mind all of the time it was you that was snapping your fingers.’ Counsel for defendant asked the witness to watch the second hand on the clock in the court room for eleven seconds. After complying with that request, the witness said, ‘It seems to me that it was that length of time.’ He further testified that he realized after testifying that morning that, if they were 400 feet away from the truck when he first say it, it would take longer than a snap of the fingers to reach the truck and he ‘wanted to bring’ that out (in his subsequent testimony); that he based his testimony as to 10 or 11 seconds on a ‘check’ which he had made with his own automobile that morning before he testified the first time; that in making that check he traveled ‘30 miles an hour’ and it took him ‘from that point’ (where he first saw the truck) to the ‘point of the accident,’ 11 seconds, and that was the basis for ‘this eleven seconds instead of the snap of the fingers.’

A police officer testified that he investigated the accident; that he arrived at the scene of the accident at 6:15 or 6:20 a. m.; that it was dark when he arrived; that defendant's automobile collided with the left portion of the rear of the truck; that the front and right side of defendant's automobile were damaged ‘back to the wheel,’ including the windshield and the right post supporting the windshield, and the lights on the right side were broken; that at the time he arrived ‘there was no tail light lit’ on the truck; that he was unable to determine whether defendant's automobile made skid marks at the scene of the accident because there was rubbish on the pavement, apparently from the truck (the truck was loaded with leaf mold); that the truck had been moved forward by the impact but not a great distance; that he talked with defendant at the scene of the accident and defendant told him he was driving between 40 and 45 miles per hour, and that ‘he was approximately 140 to 150 feet’ from the north end of the bridge before he saw the truck; that defendant told him he ‘attempted to stop after he got up to about 150 feet before he got onto the bridge’; that defendant also told him the truck was parked with no flares, and that his (defendant's) headlights did not pick up the truck until he was about 50 feet from it; that he applied his brakes and started to turn out around the truck, but the car on his left (in lane 2) came up and prevented him from going any farther to the left.

Defendant testified that it was very dark at the time of the accident; that there was ‘a fog, a slight overcast’; that his headlights were on the low beam; that he ‘must have been going around 45 miles an hour when’ he ‘went into that curve’; that he slackened his speed going around the curve; that when he got to the bridge he ‘was picking up speed again,’ but he didn't know what speed that was; that when plaintiff said, ‘Look out, Bud,’ they were about 50 feet from the truck, and he (defendant) was looking straight ahead; that he knew there was an automobile in lane 2, but he was not watching it; that there were no lights on the truck; that as he looked up he saw ‘what must have been the tail light’ about the same time plaintiff called his warning; that at that time the automobile in lane 2 had ‘pulled up a little bit further’ and it was ‘approximately right around half a car length past’ him; that he did not ‘recall whether’ his brakes ‘had taken hold sufficient to slacken the speed’; that he did not recall that he was able to apply his brakes; that he was sure he tried to put his brakes on; that his highest speed prior to the accident was ‘around 45 miles an hour’; and that the collision nearly tore the body off his automobile. Portions of defendant's deposition, read into evidence, included the statements that defendant was traveling between 40 and 45 miles an hour when the collision took place, and that the impact moved the truck about 4 or 5 feet.

Another police officer testified that he was an accident investigator; that he went to the scene of the accident on the day of the accident or the following day; that when he saw the truck it had one tail light, and it was about 2 feet under the left rear portion of the body of the truck; that he did not recall seeking any skid marks on the highway; that the truck was loaded with leaf mold and sacks; that the load weighed about ‘300 pounds,’ and was about 3 feet high; and that he thought the truck weighed about 6200 pounds.

Plaintiff contends that, as a matter of law, he was a passenger, and the court should have instructed the jury that he was a passenger. Section 403 of the Vehicle Code, St. 1935, p. 154, provides that ‘No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride * * * has any right of action for civil damages against the driver of such vehicle * * * on account of personal injury to * * * such guest during such ride, unless the plaintiff in any such action establishes that such injury * * * proximately resulted from the intoxication or wilful misconduct of said driver.’ (Italics added.) Whether plaintiff's status was that of passenger or guest, under section 403, depends upon whether plaintiff gave ‘compensation’ for the ride. Benefits or considerations to the driver other than cash or its equivalent may be ‘compensation.’ Kruzie v. Sanders, 23 Cal.2d 237, 241, 143 P.2d 704. The nature of the compensation as contemplated by the statute is as variable as the particular facts involved. Whitechat v. Guyette, 19 Cal.2d 428, 431, 122 P.2d 47. There is no compensation where nothing more than the exchange of social amenities and reciprocal hospitalities are involved. Kruzie v. Sanders, supra, 23 Cal.2d at page 243, 143 P.2d at page 706. Whether certain benefits or considerations constitute ‘compensation’ depends upon the motive which promoted defendant to furnish the transportation. It was stated in Swink v. Gardena Club, 65 Cal.App.2d 674, at page 677, 151 P.2d 313, at page 314, that the question as to compensation ‘depends on whether ‘a special tangible benefit to the defendant was the motivating influence for furnishing the transportation.’' It was said in Fiske v. Wilkie, 67 Cal.App.2d ——, at page ___, 154 P.2d 725, at page 729, ‘The law of this state is well settled that the payment for gas and oil used on an automobile trip taken for the mutual pleasure of the driver and an injured occupant does not constitute compensation for the ride.’ Whether there is compensation or whether the transportation is intended and received as a mere gratuity is a question for the trier of fact upon proper evidence. Humphreys v. San Francisco Area Council, 22 Cal.2d 436, 442, 139 P.2d 941. Whether there is compensation within the meaning of section 403 of the Vehicle Code must, therefore, be determined from the circumstances of each particular case. Plaintiff argues that the allegations of paragraph VII of his complaint, except the first four lines thereof, were admitted by defendant, and by such admission it was established that plaintiff was a passenger. That paragraph is as follows—the portion thereof denied by defendant being in italics: ‘That prior to and at the time of the said accident the plaintiff Edwin D. Huebotter was riding as a passenger in the said automobile of said defendant P. T. Follett which was being operated by said defendant on a ‘share the ride’ basis, or pooling of transportation, with the said defendant Follett and one other passenger, one William Wilson. That said ‘share the ride’ or pooling transportation basis upon which the said plaintiff and said Wilson were operating was done for the purpose of preserving tires pursuant to the direction of the Federal Government of the United States. That at the time of the said accident, the said parties were on their way from their homes to their work at the Roosevelt Fleet Operating Base of the United States Navy, located on Terminal Island. That pursuant to their said co-operative plan of pooling transportation, each of the three persons had agreed to and were using their respective cars two days out of each week to transport themselves to and from their work to their homes. That the said defendant Follett at the time of the said accident was using his car on the first day of his regular allotted two days and the same would have ended on Saturday night; that the plaintiff, Edwin D. Huebotter would thereafter have operated his automobile in carrying as passengers the said defendant Follett and the said Wilson. Thereafter, Tuesday and Wednesday, said Wilson would have used his automobile to carry the plaintiff Edwin D. Huebotter and defendant Follett.' The denial of a portion of that paragraph was not made until after the close of the testimony, and then upon motion by defendant the court granted him permission to make that denial. The denial, as shown above by italics, was to the effect that plaintiff was not a passenger on a ‘share the ride’ basis. The portion of the paragraph which was not denied was in substance a statement of purported facts allegedly constituting the basis for sharing the rides. It is to be noted that the first sentence of the undenied portion of the paragraph states the purpose of the plaintiff and Wilson in operating on a ‘share the ride’ basis, namely, to preserve tires pursuant to the direction of the government. It is to be noted also that the purpose of defendant was not stated in that sentence. The remainder of said undenied portion, however, related to the manner in which the three persons, including the defendant, went to and from work. The pleadings and unconflicting evidence established that the three persons traveled together six days a week from their homes to their work, each using his own automobile two days a week. By using one automobile each day to transport all of them, instead of using a separate automobile for each one, the cost of transportation for each person was reduced. It was held in Peccolo v. City of Los Angeles, 8 Cal.2d 532, 537, 66 P.2d 651, that transportation under a similar arrangement was for compensation. The jury should have been instructed that defendant owed plaintiff a duty to drive with ordinary care, but the failure to so instruct it does not require a reversal of the judgment. The court instructed the jury clearly and correctly as to the law concerning a passenger, a guest, and compensation. It instructed the jury that: ‘A guest is one who is invited, either expressly or impliedly, to enjoy the hospitality of the driver of a vehicle; who accepts such hospitality; and who takes a ride either for his own pleasure or on his own business. Where, however, the driver received some compensation, which is the chief inducement for the rider's transportation, and which is given and received as compensation and as a business transaction, such a rider is a passenger, not a guest.’ It further instructed the jury that: ‘The compensation required to make a person a passenger, rather than a guest, need not be in money and need not be paid directly by the one who thereafter becomes a plaintiff. If, as the chief inducement for the transportation, any benefit is conferred on the driver, which has a then present pecuniary value, the person transported is a passenger, not a guest.’ Of course it cannot be determined whether the jury found that plaintiff was a passenger or a guest. In either event the verdict was for the defendant, and it is to be assumed the jury followed the instructions and found that plaintiff was a passenger. If it found that the plaintiff was a passenger, it does not follow necessarily that the verdict should have been for the plaintiff. They testimony of each of the three riders, as shown above, was contradictory and inconsistent within itself and was contradictory and inconsistent with the testimony of the others, and therefore, even if the jury found that plaintiff was a passenger, the evidence was such that the jury might have found that defendant was not negligent. There is in the verdict an implied finding that defendant was not guilty of any negligence which was a proximate cause of the accident. Appellant insists that the verdict should be regarded as one based upon a finding that plaintiff was a guest and not upon a finding that defendant was not negligent. The rule that all intendments are in favor of the correctness of the verdict precludes this assumption. Upon appeal from a judgment based upon a general verdict it must be assumed that the jury passed upon every material issue of fact submitted to them, and that the findings thereon were such as to give support to the verdict. Shahabian v. Najarian, 14 Cal.App.2d 435, 443, 58 P.2d 396. If there is a sufficient finding sustained by the evidence upon which the judgment may rest, it will be regarded on appeal as the one upon which the judgment did rest. American National Bank v. Donnellan, 170 Cal. 9, 15, 148 P. 188; Thayer v. Tyler, 169 Cal. 671, 147 P. 979; Bowers v. Union Trust Co., 117 Cal.App. 259, 265, 3 P.2d 614. It must therefore be concluded that the verdict was based upon findings that plaintiff was a passenger and that defendant was not guilty of negligence rather than upon a finding that plaintiff was a guest.

Plaintiff further contends that the court's refusal to give plaintiff's requested instructions 10, 11, 13 and 20 is reversible error. The first portion of proposed instruction 13 was, in substance, that if defendant looked but did not see that which he could have seen in the exercise of reasonable care, he was negligent. The court gave an instruction, from the California Jury Instruction Book, which fully covered that portion of proposed instruction 13. The remainder of said instruction 13, and proposed instructions 10, 11 and 20 were to the effect that if the jury found that defendant had failed to use ordinary care in the operation of his automobile and such failure in the slightest degree contributed to the cause of the collision, then defendant's negligence was ‘a’ proximate cause of the accident, and defendant would be liable for the full amount of plaintiff's damages even though it should appear that the concurrent negligence of the truck driver was greater than the negligence of defendant. Plaintiff asserts that the whole theory of his case ‘rested on the question of whether defendant's conduct constituted negligence wheich concurred with the conceded negligence of the truck driver, and proximately caused the collision,’ and that no instruction was given which told the jury that any lack of care by defendant which contributed as ‘a’ proximate cause of the collision would make defendant liable in damages. The trial court gave an instruction defining ‘proximate cause.’ Immediately following that instruction, the jury was instructed as follows: ‘This does not mean that the law seeks and recognizes only one proximate cause of an injury, consisting of only one person. To the contrary, the acts and omissions of two or more persons may work concurrently as the efficient cause of an injury, and in such a case, each of the participating acts or omissions is regarded in law as a proximate cause.’ (Italics added.) The court also instructed the jury that if plaintiff was a passenger at the time of the accident, defendant owed him the ‘duty to exercise ordinary care, and if any negligent conduct on defendant's part was a proximate cause of plaintiff's injury, defendant is liable.’ (Italics added.) The court gave the further instruction: ‘You are instructed that before plaintiff can recover damages for any injuries sustained by him as a result of the accident in question, you must first find that defendant was negligent and that such negligence on his part, if any, was a proximate cause of injury to the plaintiff.’ (Italics added.) Another instruction, given at the request of plaintiff, was, in substance, that if the jury found in favor of plaintiff it should, in arriving at the amount of the award, determine each item of ‘claimed detriment,’ provided it found such detriment was suffered by plaintiff ‘as a proximate result of defendant's negligence.’ (Italics added.) It appears that the jury was adequately instructed as to the matters set forth in plaintiff's requested instructions 10, 11, 13 and 20.

Appellant further contends that the court's refusal to give his requested instructions 6 and 9 constituted reversible error. Proposed instruction 6 was to the effect that if the jury found that the defendant's speed before he reached the bridge was greater than that which an ordinarily prudent driver ‘in the exercise of reasonable care would have been traveling under such conditions or circumstances,’ then it must find defendant guilty of negligence. Proposed instruction 9 was in substance that if the jury found that plaintiff warned defendant about an obstruction on the bridge in sufficient time in which the said defendant ‘in the exercise of ordinary care could have slowed his car and stopped it before he struck the obstruction or truck,’ and he failed to do so, then it must find defendant guilty of negligence. It will be noted that both instructions are to the effect that if the jury found the defendant failed to exercise ordinary care under certain circumstances, it must find that defendant was negligent. The court instructed the jury that if plaintiff was a passenger, defendant owed him the duty of exercising ordinary care, and it gave full and proper instructions from the California Book of Jury Instructions as to negligence and ordinary care. The requested instructions 6 and 9 were covered by instructions which were given.

The judgment is affirmed.

PARKER WOOD, Justice.

DESMOND, P. J., and SHINN, J., concur.