Opinion
Rehearing Granted Sept. 3, 1941.
In Bank.
Action by George Druzanich against Dorothy Criley and others, for injuries sustained while riding as a passenger in an automobile. From a judgment for defendants, the plaintiff appeals.
Judgment affirmed.
For prior opinion, see, Cal.App., 107 P.2d 445.
CARTER and TRAYNOR, JJ., dissenting in part.
Appeal from Superior Court, Los Angeles County; Joseph W. Vickers, judge.
COUNSEL
Edward M. Raskin and Belmore D. Goulden, both of Los Angeles, for appellant.
Joe Crider, Jr., of Los Angeles (John J. Ford, of Los Angeles, of counsel), for respondents.
OPINION
CURTIS, Justice.
Plaintiff appeals from a judgment in favor of defendants after trial by the court without a jury. The action was brought against the operator and the owners of an automobile by an occupant thereof to recover damages for personal injuries. The third amended complaint contained three causes of action, the first two of which were abandoned at the trial. It was alleged in the third cause of action that plaintiff was a ‘passenger’ in the automobile and that defendant Dorothy Criley was negligent in its operation. The trial court found that plaintiff was not a ‘passenger’ but was riding in the automobile as ‘a guest without giving compensation for such ride’. It further found that the defendant driver was free from negligence in the operation of the car in which plaintiff was riding at the time he sustained his injury.
From the above statements it may be seen that this case involves a problem already considered in the case of Whitechat v. Guyette, Cal.Sup., 115 P.2d 814, filed today, viz., the meaning of the phrase ‘without giving compensation’ as used in section 403 of the Vehicle Code.
Appellant and respondent Dorothy Criley were delegates to a conference in Los Angeles of the United Cannery and Agricultural Workers of America, a labor union affiliated with the C. I. O. The conference was called by district No. 2 of this union for the purpose of forming a set of rules and the policy for this district, which comprises California, Nevada and Arizona. The parties were delegates from separate branches of the same local. The means of transportation to the conference was discussed in the union office in Sunnyvale. Those present were appellant, respondents Dorothy and Richard Criley, Lloyd Lehman, another delegate, and Luke Hinman, who was apparently not a delegate, but who desired to go to Los Angeles. Dorothy Criley asked her husband Richard if he would let her use their car so that they could all go together. Criley said he didn’t feel she should use the car and drive all the way to Los Angeles, but if the others would assist her in driving, she could have the car. The parties all agreed to this, and they started that evening. Dorothy Criley drove from Sunnyvale to King City; appellant drove from there to Santa Maria; Hinman from Santa Maria to Santa Barbara, where respondent Dorothy Criley again took the wheel and drove until the time of the accident. There was no definite schedule or plan as to distances each was to drive, and the shifts were made as each driver felt in need of a rest. Lehman, who was to attend an early conference, didn’t drive at all. The accident occurred at about 7:30 o’clock in the morning. Appellant was in the back seat and because he was dozing at the time, his testimony is of little aid as to the events leading up to or the cause of the accident. Respondent Dorothy Criley didn’t testify at the trial, but according to her deposition, she was driving at a speed of fifty or fifty-five miles an hour and came to a left curve. She was sleepy because of the all-night ride and blinked her eyes on the curve. The car was traveling on the outer lane and the wheels hit a soft shoulder. Respondent lost control and the car went over an embankment, turning over several times. Appellant was thrown out of the car and suffered the personal injuries for which he now seeks to recover damages.
Appellant first argues that he had given ‘compensation’ for the ride within the meaning of section 403 of the Vehicle Code, St.1935, p. 154, and was thus a ‘passenger,’ who could recover if the driver were negligent, because the parties were engaged in a business venture for their mutual advantage and traveling in contemplation of their mutual business. This same contention was made by the respondents in the Whitechat case, supra, and we there held that the relationship between the driver and the deceased was not such as to bring the case within that group of cases headed by Walker v. Adamson, 9 Cal.2d 287, 70 P.2d 914, which stands for the above-mentioned proposition. The relationship in the Whitechat case differs from that presented herein that in the former case the driver although a member of the Young Men’s Institute, was not required to attend the meeting in Stockton, whereas in the instant case both parties were delegates to the conference. However, the instant case still does not come within the Walker v. Adamson classification. It is true that both parties desired or, as delegates, were required to attend the conference. It is also true that each would be benefited by individual attendance. However, the attendance of one was not necessary for the enjoyment of the benefits of attendance by the other. This being so, it becomes immaterial whether the conference was of a business or social nature. The case of Doherty v. Edwards, 227 Iowa 1264, 290 N.W. 672, 674, is illustrative of that type of situation in which it may be said that compensation was given because the trip was an integral part of a business venture for the mutual advantage of the parties. There the driver of the car was a supervisor of federal loans and the occupant was interested in borrowing some money. The court stated that ‘Presumably the presence of both was necessary’. In the instant case either the appellant or respondent Dorothy Criley could have enjoyed the benefits of the conference without the presence of the other. The fact that the parties were both interested in the general objective of the trip, viz., the attending of the conference, is not the controlling factor. If an attorney were transporting a client to a place where the client’s case was to be heard, then it might be said that the client would be a ‘passenger’ and not a ‘guest’ who had not given compensation, but if two attorneys were riding to a certain point in a car owned by one for the purpose of appearing on different matters in the same court, no such relationship would exist unless some tangible benefit had passed from one to the other.
The qualification of the last statement brings us to the second contention of appellant. That contention is that the promise to aid in the driving was sufficient to take him out of the category of a ‘guest’ who had not given compensation. In opposition to this, respondents argue that this sharing in the driving was merely incidental and analogous to the sharing of expenses as in McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909. Cases may arise in which a sharing of the driving might be a ‘courtesy of the road’ and thus not of sufficient benefit to be considered compensation, but this is not true in the instant case. Reference to the testimony of both parties in regard to the conversation prior to the trip show that the offer to transport appellant was conditional upon his sharing in the driving. This appellant agreed to do, and it was just as much payment for transportation as a railroad fare. Respondent Dorothy Criley desired to take her husband’s car to Los Angeles, but she could not do so unless appellant and the others promised to share in the driving. Appellant’s promise then was the ‘special tangible benefit’ which was the ‘motivating influence for furnishing the transportation’ referred to in the McCann case, supra, 9 Cal.2d at page 286, 70 P.2d 909, and must be termed compensation. The instant case cannot be distinguished from the case of Lerma v. Flores, 16 Cal.App.2d 128, 60 P.2d 546, wherein the plaintiff was invited by the defendant to ride with him so that he [plaintiff] might show the defendant which route they should follow. Nor does it differ materially from the case of Haney v. Takakura, 2 Cal.App.2d 1, 37 P.2d 170, in which the plaintiff, who had experience in selling oranges, was asked to accompany the defendant driver into town to aid the defendant in selling his crop of oranges. In each case there was a special tangible benefit passing from the occupant to the driver which was sufficient to be termed compensation within the meaning of section 403 of the Vehicle Code. The case of Mayer v. Puryear, 4 Cir., 1940, 115 F.2d 675, cited by respondents, is clearly distinguishable in that there the furnishing of transportation was not made conditional upon the sharing in the driving. We are, therefore, of the opinion that the trial court erred in finding that appellant was not a ‘passenger,’ but was riding in the automobile as ‘a guest without giving compensation for such ride’. However, this conclusion is not sufficient to compel a reversal of the judgment unless it can be said that the trial court also erred in finding that the accident was not proximately due to the negligence on the part of respondent Dorothy Criley.
In support of his contention that the trial court erred in finding that the respondent Dorothy Criley was free from negligence, the appellant urges that the doctrine of res ipsa loquitur should be applied to the instant situation. There is authority to the effect that this doctrine may be employed under circumstances similar to those existing in the present case. See Godfrey v. Brown, 220 Cal. 57, 64, 29 P.2d 165, 93 A.L.R. 1092; Cookson v. Fitch, 116 Cal.App. 544, 3 P.2d 27; Queirolo v. Pacific Gas & Elec. Co., 114 Cal.App. 610, 300 P. 487; Ireland v. Marsden, 108 Cal.App. 632, 291, P. 912; Crooks v. White, 107 Cal.App. 304, 290 P. 497; Brown v. Davis, 84 Cal.App. 180, 257 P. 877. However, the inference of negligence created by the application of the res ipsa loquitur rule does not compel the trial court, as the fact finding body, to find negligence as a matter of law. The application of such doctrine does not give a plaintiff an absolute right to a judgment in every case. Raymer v. Vandenbergh, 10 Cal.App.2d 193, 51 P.2d 104; Nicol v. Geitler, 188 Minn. 69, 247 N.W. 8; Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, Ann.Cas.1914D, 905. It does not shift the burden of proof from the plaintiff, and when applied, creates no more than an inference of negligence, from which the trier of the facts may find for a plaintiff. Ales v. Ryan, 8 Cal.2d 82, 99, 64 P.2d 409; Anderson v. I. M. Jameson Corp., 7 Cal.2d 60, 59 P.2d 962; Scarborough v. Urgo, 191 Cal. 341, 216 P. 584; Crooks v. White, supra. The appellant [citing Ales v. Ryan, supra] argues that the inference of negligence raised by the res ipsa loquitur rule cannot be arbitrarily disregarded and that respondent Dorothy Criley’s explanation of the cause of the accident was insufficient to rebut the inference of negligence. The explanation of this respondent was as follows:
‘Q. I want to know exactly how the accident occurred. A. I was driving about 50 or 55 miles an hour and came to a curve. I was sleepy, because we had not slept all night, and I blinked my eyes on the curve.
‘Q. Was this curve a curve to the left or a curve to the right? A. I don’t know whether it was left or right— you mean a curve towards the right?
‘Q. What kind of a curve did you negotiate? Was it one in which you had to make a left-hand turn or a right-hand turn? A. A left-hand turn.
‘Q. You then were on the outer lane of that curve? A. I was on the outer lane.
‘Q. Well, did you negotiate that turn? A. No, I did not, because when I went around the curve there was a soft shoulder and I hit that and the car skidded and went out towards the center of the road and I lost control over it and went over the embankment.’
Whether this explanation was sufficient and whether respondent Dorothy Criley was negligent in the operation of the car were for the trial court, as the trier of the facts, to determine. The trial court was apparently satisfied with the explanation and found there was no negligence; therefore, any inference of negligence that might have arisen was rebutted by such explanation. See Scarborough v. Urgo, supra; Ireland v. Marsden, supra.
The frank admission by the respondent Dorothy Criley that she was sleepy and tired should not of itself compel a finding of negligence. The cases cited by appellant in support of such contention all involved other factors not present in the instant case. In Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785, the driver actually fell asleep, and even under those circumstances the court held the question of negligence to be one for the jury. In Gower v. Strain, 169 Miss. 344, 145 So. 244, 246, the court states that ‘he [defendant] practically admitted that he consciously permitted himself to go to sleep, or, at least, that he did not make proper effort to avoid it,’ yet holds the question of negligence to be one for the jury. The court in the case of Rode v. Roberts, 11 Cal.App.2d 638, 54 P.2d 498, merely states that drowsiness might indicate negligence but not wilful misconduct. The defendant in the case of Stotts v. Blickle, 220 Cal. 225, 30 P.2d 392, was found to be guilty of gross negligence because he had dozed off at the time of the accident and because he had failed to have a defective steering apparatus repaired. There are situations in which continued driving while in a state of physical and mental exhaustion would be negligence as a matter of law, but such question is usually one of fact and is clearly such in the instant case.
The question of negligence being one of fact and the trial court having found against plaintiff on this issue, such finding cannot be disturbed by this court.
The judgment is affirmed.
I concur: PULLEN, Justice, pro tem.
We concur in the judgment: SHENK, J.; EDMONDS, J.
CARTER, Justice (dissenting).
I dissent.
I concur in that portion of the majority opinion which holds that plaintiff was a passenger and not a guest in defendant’s automobile at the time of the accident which is the subject of this action, but I dissent from that portion of said opinion which holds that the finding of the trial court that the defendant was not guilty of negligence should be upheld. In my opinion the judgment should be reversed because the evidence establishes as a matter of law that the defendant, Dorothy Criley, was negligent in the operation of the vehicle and that such negligence was the proximate cause of the accident. The occurrence of the accident speaks for itself. The evidence without contradiction shows the following: Defendant was operating the car on the paved highway between San Francisco and Los Angeles, at a speed of 50 to 55 miles per hour at the time of the accident, at 7:30 in the morning, the sun was shining and, insofar as appears from the record, the pavement was dry. The windshield on the car was clean and visibility ahead was clear. Defendant rounded a left-hand curve in the highway, the car left the pavement, struck a soft shoulder, and rolled down an embankment, turning over several times. No vehicle was approaching from the opposite direction. The highway was clear and unobstructed in the direction in which defendant was traveling. There is no evidence or even suggestion that there was any gravel or other substance on the pavement which would have caused the car to skid; that any tire on the car became flat or was in a condition other than normal; that the steering apparatus was not operating properly; or that the sun or anything else blinded defendant. Nevertheless, the car left the road with the result above-mentioned. Automobiles when driven with due care and caution do not leave the highway under these circumstances. The fact that the car did leave the road speaks for itself; the inescapable inference is that defendant was negligent. The majority opinion concedes that under the circumstances here presented, the doctrine of res ipsa loquitur is applicable; that cannot be denied. Godfrey v. Brown, 220 Cal. 57, 29 P.2d 165, 93 A.L.R. 1092; Cookson v. Fitch, 116 Cal.App. 544, 3 P.2d 27; Queirolo v. Pacific Gas & Electric Co., 114 Cal.App. 610, 300 P. 487; Ireland v. Marsden, 108 Cal.App. 632, 291 P. 912; Crooks v. White, 107 Cal.App. 304, 290 P. 497; Brown v. Davis, 84 Cal.App. 180, 257 P. 877. But it invokes the rule that the doctrine raises merely an inference of negligence, not a presumption, and that the trial court is not bound to decide in favor of the inference. The trier of fact cannot, however, arbitrarily disregard the inference. In Ales v. Ryan, 8 Cal.2d 82, 99, 64 P.2d 409, 417, it is said: ‘The rule is well settled by a multitude of decisions of the appellate courts of this state to the effect that the inference of negligence which is created by the rule res ipsa loquitur is in itself evidence which may not be disregarded by the jury and which in the absence of any other evidence as to negligence, necessitates a verdict in favor of the plaintiff. It is incumbent on the defendant to rebut the prima facie case so created by showing that he used the care required of him under the circumstances . The burden is cast upon the defendant to meet or overcome the prima facie case made against him. The defendant is not required to establish his defense by a preponderance of the evidence. All that is required is that he produce evidence which equals in evidentiary weight the inference which the doctrine creates in favor of plaintiff. The burden of proof as generally understood never shifts from the plaintiff to the defendant on the general issue of negligence. The inference of negligence unrebutted is actionable negligence coming within the doctrine of res ipsa loquitur and is sufficient to support a verdict for the plaintiff.’
Once the inference of negligence arises and defendant produces evidence to rebut the inference or explain how the accident occurred, it is ordinarily a question of fact for the jury to determine whether or not the plaintiff has proven by a preponderance of the evidence that plaintiff was negligent. But if the defendant offers no explanation the trier of fact must follow the inference. Ales v. Ryan, supra. If the defendant adduces rebutting evidence, such evidence to be effective for that purpose must consist of a showing that he used due care. Ales v. Ryan, supra. Let us then examine the rebutting evidence produced by defendant in this case. It consists of her testimony that her driving speed was 50 to 55 miles per hour; that she was sleepy and blinked her eyes; that she went around a left curve in her right hand lane and the car left the pavement, hit a soft shoulder and rolled down an embankment. Manifestly that evidence rather than showing an exercise of due care on defendant’s part unerringly points to negligence. It fortifies and strengthens rather than rebuts the inference of negligence. Its effect is no evidence at all in explanation of the accident or controverting the inference. Therefore the rule in Ales v. Ryan, supra, that the trier of fact may not disregard the inference, must be applied, and the finding of no negligence set aside. The only inference reasonably deducible from these facts is one of negligence. There are not two reasonable inferences, one of negligence and the other of due care, in which case the jury’s finding is conclusive. When no explanation is given for the accident the verdict must be for plaintiff. Ireland v. Marsden, supra.
In my opinion it cannot be said that defendant was exercising ordinary care in the manner in which she operated her automobile at the time of the accident. Certainly, a reasonably prudent person would not close or blink his eyes while driving an automobile around a turn at a rate of speed from 50 to 55 miles per hour. This conduct in my opinion constituted negligence as a matter of law, and the finding to the contrary by the trial court should not be permitted to stand.
I concur: TRAYNOR, J.