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WHITECHAT et al. v. GUYETTE.
Defendant appeals from a judgment rendered by the trial court after a jury verdict awarding plaintiffs, as surviving widow and minor child, $8,000 damages for the alleged wrongful death of one David Whitechat. The death occurred when the automobile in which the deceased was riding overturned while being driven from Fresno to Stockton. The defendant owned and was driving the car at the time of the accident. The occupants of the car, other than defendant, were officers of the Fresno chapter of the Young Men's Institute and, as such, were going to Stockton to attend a business meeting of that organization. The defendant was a member of the Young Men's Institute but was not an officer required to attend the meeting. The only testimony offered at the trial with reference to the status of decedent in the automobile was that of defendant Guyette. From his testimony it is disclosed that the proposed Stockton meeting was discussed on Monday evening prior to the date of the accident at the regular meeting of the Fresno chapter. At that time the question of transportation was brought up and the defendant was asked if he would take the four officers, including Whitechat, in his car. After some hesitancy because of late working hours defendant consented. One of the occupants of the car was a grand officer of the organization and was allowed mileage, which would amount to approximately five dollars. After the defendant had agreed to take his car, this grand officer offered to turn the expense money he would receive from the Young Men's Institute as mileage over to defendant to defray his expenses. This offer was apparently accepted by defendant, but he made it clear that he was making the trip in the interest of the organization and because of his friendship for the men who were required to go, and not because of the promise of the five dollars to defray expenses.
A few miles north of Fresno, while driving at a speed of fifty miles per hour, defendant lost control of the car as the result of the flattening of the left rear tire, and the accident and death above referred to followed. The complaint alleged that Whitechat was riding as a passenger for compensation and that his death was the direct and proximate result of defendant's negligence. There were no allegations nor was there any proof offered of intoxication or wilful misconduct on the part of defendant.
Appellant argues that the evidence most favorable to the respondents shows, as a matter of law, that Whitechat was technically a ‘guest’ and was not a ‘passenger for compensation’, as alleged in the complaint, and that therefore the judgment cannot stand, as neither wilful misconduct nor intoxication was pleaded. Respondents argue that whether or not compensation was given was a question of fact for the jury, and that by returning a verdict in their favor, the jury impliedly found that there was compensation either because the relationship between the parties was of a business rather than a social nature and the transportation was supplied in pursuance thereof for their mutual benefit, or because of the special tangible benefit to the appellant for furnishing the ride, viz., the promise of the five dollars to defray expenses. The determinative question, therefore, on this appeal is whether Whitechat was a passenger or a guest, without having given compensation for the ride within the meaning of section 403 of the Vehicle Code, St.1935, p. 154.
In approaching this problem it is well to keep in mind the observation made in the case of McCann v. Hoffman, 9 Cal.2d 279, 282, 70 P.2d 909, to the effect that although the terms ‘passenger’ and ‘guest’ have for convenience been adopted for the purpose of distinguishing a person carried for hire or reward from one carried gratuitously, the chief concern of the courts should be the meaning of the phrase ‘without giving compensation’ as used in section 403 of the Vehicle Code, and not a definition of the term ‘guest’.
Since the enactment of the ‘guest law’ in 1929 there have been numerous decisions both by this court and the district courts of appeal wherein it was determined that certain benefits passing from the occupant to the owner or operator of an automobile were or were not sufficient to be termed ‘compensation’ within the meaning of what is now section 403 of the Vehicle Code. These cases have laid down certain general rules which may be used as a guide, but as noted in McCann v. Hoffman, supra, the nature of compensation as contemplated by the statute is as variable as the particular facts involved. Instead of attempting to formulate some new or further rule in the instant case, the better method would seem to be to place this case within one of the classifications of the previously decided cases, if we are justified in so doing by its facts.
As a starting point reference might be made to a situation in which a person driving along a highway picks up a hitch-hiker. It is clear that the pleasure derived from the doing of such an act of kindness is not a benefit sufficient to be considered compensation, and, in fact, the only tangible benefit is enjoyed by the hitch-hiker. Nor is there any question of compensation involved if a driver of a car takes another to some social event which both desire to attend or to some other point of common destination solely for the pleasure derived from the taking. It is equally clear that the benefits of hospitality, companionship or goodfellowship accruing to the owner or operator of an automobile as the result of a simple pleasure trip are not benefits that may be considered compensation. Even if there is something tangible in the way of a contribution of money from the occupant to the driver, a sharing of expenses, or even in some cases full payment of gas and oil by the occupant, there is no benefit sufficient to be termed compensation if the trip is of a purely social nature. In the McCann case, supra, two couples were on a pleasure trip from San Mateo to Rio Del Mar, and there was a mutual understanding that the expenses of the trip would be shared equally. It was there held that such sharing of expenses was not compensation. See, also, Stephen v. Spaulding, 32 Cal.App.2d 326, 89 P.2d 683; Starkweather v. Hession, 23 Cal.App.2d 336, 73 P.2d 247; Rogers v. Vreeland, 16 Cal.App.2d 364, 60 P.2d 585; Chaplowe v. Powsner, 119 Conn. 188, 175 A. 470, 95 A.L.R. 1177; Morgan v. Tourangeau, 259 Mich. 598, 244 N.W. 173; Clendenning v. Simerman, 220 Iowa 739, 263 N.W. 248. On the other hand, if the parties are engaged in a business venture for their mutual advantage and the ride is an integral part of that business venture, then the driver may be said to be in receipt of benefits sufficient to be classified as compensation, and the occupant becomes a ‘passenger’, who may recover for injuries suffered as a result of the negligence of the driver. In the case of Walker v. Adamson, 9 Cal.2d 287, 70 P.2d 914, the driver and occupant were business associates, and the trip was for the purpose of taking some material to carpenters engaged in construction work on property jointly owned by them, and for the purpose of supervising said construction and the renting of the property. Under such circumstances compensation was said to have been given. See, also, Jensen v. Hansen, 12 Cal.App.2d 678, 55 P.2d 1201; Parrett v. Carothers, 11 Cal.App.2d 222, 53 P.2d 1023; Woodman v. Hemet Union High School District, 136 Cal.App. 544, 29 P.2d 257. Another situation where the benefit received has always been held to be compensation is that in which the owner or operator invites another to ride with him with the hope of making some future profit as a result of such ride. One of the first and a typical example of this type of situation is the case of Crawford v. Foster, 110 Cal.App. 81, 293 P. 841, wherein a prospective purchaser of an automobile injured in an accident during a demonstration was held not to be a ‘guest’ without having given compensation because of the hope of a future sale on the part of the driver. See, also, Piercy v. Zeiss, 8 Cal.App.2d 595, 47 P.2d 818; Riley v. Berkeley Motors, Inc., 1 Cal.App.2d 217, 36 P.2d 398. The final and most obvious situation in which it may be said that compensation has been given is that wherein an owner or operator is promised a money payment for transportation to a certain point. The clearest example of this is a passenger in a taxicab. Chaput v. Lussier, 132 Me. 48, 165 A. 573. If the person injured is one of a class which the owner or operator was paid to transport, then it is immaterial whether or not that particular person made the payment. Smith v. Fall River Joint Union High School District, 118 Cal.App. 673, 5 P.2d 930.
Having outlined the classifications made by the appellate courts of this and other states, there remains the question whether the facts in the instant case place it in one of the above-mentioned categories.
Respondents contend that the jury could have found the deceased to be a ‘passenger’ or that the defendant received compensation, under the authorities for two different reasons: First, because the relationship between the parties was of business and the transportation was supplied in the pursuit thereof for their mutual benefit, and second, because of the promise of payment of the five dollars for furnishing the ride.
In order to uphold the respondents' first contention, it must be shown that the appellant and the deceased were engaged in a business venture for their mutual advantage and that the ride was an integral part of that business venture. No such showing has been made. It is true that all of the occupants of the car were members of the Young Men's Institute, and it might be said generally that the trip was being made for the purpose of attending a meeting of that organization, but specifically the four occupants of the car other than appellant were attending a business meeting which, as officers, they were required or at least expected to attend. The appellant, although a member, was not an officer and was not required to attend. Therefore, as between appellant and deceased it cannot be said that the trip was an integral part of a business venture for their mutual advantage, as in the case of Walker v. Adamson, supra, where the trip was being made for the purpose of taking material to carpenters who were working on property jointly owned by the driver and the injured occupant. Disregarding for the moment the promised money payment, the relationship between the appellant and the deceased may be said to be merely one of a social nature analogous to that existing in the case of McCann v. Hoffman, supra, wherein the parties were on a pleasure trip. From this standpoint then the benefit received by appellant was not sufficient to be termed compensation within the meaning of section 403 of the Vehicle Code.
Respondents' second contention is that whether the promise of payment of five dollars was compensation as in the case of Smith v. Fall River Joint Union High School District, supra, or merely a sharing of expenses as in the McCann case, supra, was a question of fact for the jury, and that body, by rendering a verdict for respondents, impliedly found that the payment was compensation, which finding is conclusive on this court. In answer to this contention appellant argues that in view of the evidence presented, the question is one of law, and as a matter of law under McCann v. Hoffman, supra, decedent was a ‘guest’ and not a ‘passenger’, or in other words, that the promise of payment of five dollars was merely a promise to share expenses and not compensation.
The record discloses that the only evidence in regard to the offer of the five dollars to appellant was the testimony of appellant himself. He testified that he agreed to take the officers to Stockton before the five dollar offer was made; that subsequent to that agreement, the grand officer told appellant that he would give him the five dollars which he could collect from the Young Men's Institute as mileage to defray appellant's expenses on the trip; and that he (appellant) accepted the offer but still insisted that he was going to take the men to Stockton because of his friendship for them and in the interest of the organization, and not because of the promised money payment. If this testimony were accepted as true, then it would necessarily follow that as a matter of law, the promise of payment to defray expenses was merely a promise to share expenses, and not a promise of compensation. However, relying on the general proposition that a jury is the sole judge of the credibility of a witness and may believe all of his testimony or believe a part and reject parts, as it might be convinced of the truth or falsity of such testimony (citing Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 503, 55 P.2d 870), respondents argue that the jury could disbelieve that part of appellant's testimony to the effect that he agreed to make the trip prior to any mention of money and could further refuse to accept appellant's statement that he was making the trip out of friendship for the men and in the interest of the organization, and not because of the promised five dollars. Having destroyed these two elements, there remained only the promise of the five dollar payment. From this one of two inferences could be drawn, viz., that the money promised was for a sharing of expenses or for compensation. Having developed their argument to this point, respondents then refer to the general rule 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 or jury (citing Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183). It is then argued that the jury must have inferred that the promise was compensation and that such conclusion cannot be disturbed by this court.
The above argument as developed is a convincing one and the general rules supporting it are, as abstract propositions, undoubtedly correct. However, the respondents fail to take into consideration another rule in regard to inferences that has been equally well established by this court. The further and controlling rule is that an inference is dispelled as a matter of law when it is rebutted by clear, positive and uncontradicted evidence which is not open to doubt, even though such evidence is produced by the opposite party. Engstrom v. Auburn Automobile Sales Corp., 11 Cal.2d 64, 77 P.2d 1059; Crouch v. Gilmore Oil Co., 5 Cal.2d 330, 54 P.2d 709; Johnston v. Black Co., 3 Cal.App.2d 363, 369, 91 P.2d 921; Maupin v. Solomon, 41 Cal.App. 323, 324–326, 183 P. 198. This rule was recognized in the case of Huddy v. Chronicle Publishing Co., 15 Cal.2d 554, 103 P.2d 421, but the inference there with reference to the issue of employment was held not to be dispelled in that case because the opposition evidence was weakened by contradictions and uncertainty, and in view of the surrounding circumstances was open to doubt. See, also, Tsirlis v. Standard Oil Co., 32 Cal.App.2d 469, 476, 90 P.2d 128; Day v. General Petroleum Corp., 32 Cal.App.2d 220, 230–231, 89 P.2d 718. In the instant case the inference that the promised payment was compensation was rebutted by clear, positive and uncontradicted evidence to the contrary. The testimony of the appellant that he agreed to take the officers to Stockton before any mention was made of money, and that subsequent to the offer of the grand officer, he reiterated that the trip was being made because of his friendship for the men and in the interest of the organization is neither conflicting, vague, uncertain, contradictory nor improbable. The respondents offered no evidence to refute this testimony and none of the surrounding circumstances forces the conclusion that the testimony was in any way open to doubt. We are, therefore, of the opinion that the inference was dispelled as a matter of law and the implied finding that the promise of payment of the five dollars was ‘compensation’ within the meaning of section 403 of the Vehicle Code was contrary to the only evidence produced.
The deceased being a ‘guest’ without having given compensation for the ride, the judgment in favor of respondents cannot be upheld, as neither intoxication nor wilful misconduct was pleaded or proved.
The judgment is reversed.
The sole issue presented in this case is whether the deceased, for whose death damages were awarded, was a guest or a passenger in the vehicle involved in the accident in which he met his death. It is essential to an affirmance of the judgment that the deceased was a passenger inasmuch as the action is predicated on negligence, rather than wilful misconduct or intoxication. Vehicle Code, sec. 403. The verdict of the jury in favor of plaintiffs carried the implied finding that deceased was a passenger rather than a guest. That finding cannot be disturbed if it has any evidentiary support. The evidence clearly establishes that for the trip during which the accident occurred, defendant was to receive the sum of $5 compensation. Suffice it to refer to defendant's testimony in that respect: ‘Q. He (the president of the lodge, the officers of which were making the trip) was willing to give it (the $5) for making this trip to Stockton? A. Yes, he was.’ The salient fact is therefore that it was agreed that defendant would be paid $5 for transporting the officers of the lodge, including the deceased to Stockton. Without further being said on the subject defendant did transport the deceased on that trip to the point where the accident occurred. It in effect was a unilateral contract of the kind which are an every day occurrence. A states to B that he will pay him $5 to drive him to a certain destination. B makes no reply either accepting or rejecting the offer but proceeds to performance by commencing the journey. It is unnecessary to indulge in any inferences. The performance itself is the acceptance of the offer and gives rise to a binding contract. That evidence standing alone is sufficient to support the jury's finding that the deceased was a passenger rather than a guest. The most that can be said of the evidence to the effect that defendant had agreed to transport the deceased before the offer of $5 compensation was made, is that it would create a conflict in the evidence which the jury has conclusively resolved in favor of plaintiffs. In any event the jury is sole judge of the credibility of a witness and may believe all of his testimony or believe part and reject part. Firth v. Southern Pacific Co., 44 Cal. App. 511, 186 P. 815. ‘The jury is the sole judge of the credibility of the witnesses, and may believe all of the testimony of a witness or believe a part and reject parts as it may be convinced of the truth or falsity of such testimony, whether it arises from willfulness or mistake.’ Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 503, 55 P.2d 870,88 2. The jury was therefore at liberty to disbelieve that portion of defendant's testimony in which he stated that he had agreed to transport deceased without charge before any mention was made of the $5 compensation. There is then left the above-quoted testimony that directly and unequivocally establishes that the defendant was to receive compensation for taking the deceased on the journey. Furthermore, the evidence as to the prior purported agreement, if believed, is not necessarily inconsistent with the later arrangement whereby defendant was to receive $5 compensation. At most the prior agreement was a mere unenforceable promise, being without consideration, concerning which defendant could change his mind with impunity. It is not unreasonable to conclude that the prior agreement was cancelled and revoked by the later agreement under which an offer was made to pay compensation for the trip, and under which performance was commenced.
Even if it is accepted that the evidence of the passenger relationship consists wholly of the inference that the transportation was made for compensation, arising from the unquestioned promise to pay $5 therefor, the result is the same. That inference is evidence which the jury is entitled to weigh with other evidence and use as the basis for its implied finding that the deceased was a passenger. An inference that may be drawn in support of a verdict is nonetheless available merely because other contrary inferences may be drawn. Crawford v. Southern Pacific Co., 3 Cal.2d 427, 45 P.2d 183. The majority opinion concedes the above stated premises but invokes a purported rule to defeat the conclusions reached, that is, ‘an inference is dispelled as a matter of law when it is rebutted by clear, positive and uncontradicted evidence which is not open to doubt, even though such evidence is produced by the opposite party’, citing Engstrom v. Auburn Automobile Sales Corp., 11 Cal.2d 64, 77 P.2d 1059; Crouch v. Gilmore Oil Co., 5 Cal.2d 330, 54 P.2d 709; Johnston v. Black Co., 33 Cal.App.2d 363, 91 P.2d 921; Maupin v. Solomon, 41 Cal.App. 323, 183 P. 198; Huddy v. Chronicle Publishing Co., 15 Cal.2d 554, 103 P.2d 421. Even if that rule be accepted, its very language establishes that it cannot control the case at bar. As stated in the Engstrom case [11 Cal.2d 64, 77 P.2d 1063], ‘if the opposition [opposed to the inference] evidence is conflicting, vague, or uncertain, or is weakened by contradictions, or improbabilities' the inference is not dispelled. Here the only opposition evidence is the testimony of defendant that he agreed to transport the officers without charge before any mention was made of the $5 compensation and that his purpose in so doing was his friendship for the officers and interest in the lodge. We have already seen that the prior agreement is not necessarily inconsistent with the arrangement whereby he was to receive compensation. There is not therefore a precise contradiction of the inference. Furthermore, that evidence is neither positive nor direct in contradiction of the inference. In order to be available as any evidence it must itself depend upon inference. Suppose such an agreement does exist followed by a promise to pay the $5 compensation. Thereafter the trip has been commenced. There is no direct evidence that the commencement of the journey was in performance of the first arrangement or the second. To conclude that the trip was made in fulfillment of his agreement so to do without compensation, it must be nferred that such performance was in response to that promise; there is no direct evidence positively and unequivocally connecting the two events. It is just as reasonable to infer that the performance was in compliance with and acceptance of the offer of $5 compensation for furnishing the transportation. To say therefore that there is direct evidence dispelling the inference here involved is obviously not true. An inference is being weighed against a contrary inference. The holding of the majority opinion is tantamount to a rule of law by which an appellate court may conclude contrary to a trial court's finding that one inference has dispelled another inference. That is not the law and is not the effect of the decisions in the Engstrom and other cases referred to. In regard to defendant's testimony as to his purpose in taking the deceased to Stockton, it cannot be denied that such evidence is not only weak and uncertain but is far from being free from doubt. When a person states his purpose or reason for certain conduct, he is relating something that must be gleaned from the secret recesses of his mind. No one but the relator can possibly know what is locked in his mind. There is no direct way of refuting such testimony. It may be fabricated with impunity. The one against whom it is invoked is practically helpless to protect himself. In reality it is nothing more than the witness' conclusion which may have been arrived at by a series of deductions in which any number of factors are involved. To say that that type of evidence is free from ‘doubt’, is ‘certain’, and is ‘positive and direct’ is manifestly incorrect. It is not only doubtful evidence but it is evidence of the weakest sort.
Finally, it must be remembered that this evidence was the testimony of the defendant, the interested party. Testimony of that character is always subject to the criticism of bias and prejudice. It cannot be said to be strong or free from doubt as a matter of law.
In my opinion the judgment should be affirmed.
We concur: SHENK, J.; PULLEN, Justice pro tem. I concur in the judgment: EDMONDS, J.
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Docket No: L. A. 17813.
Decided: August 04, 1941
Court: Supreme Court of California.
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