Opinion
Rehearing Denied Nov. 21, 1962.
Zacsek & Schwimmer and Jacque Boyle, Los Angeles, for appellant.
Spray, Gould & Bowers, Los Angeles, for respondent.
FOURT, Justice.
This is an appeal from a judgment rendered in favor of the defendant after a trial by jury. The action arose out of an automobile accident which occurred on March 23, 1959. Plaintiff was an occupant of a Ford automobile owned and operated by defendant. The accident occurred at approximately 2:30 a. m. when defendant's automobile collided with a parked automobile.
A brief resume of the facts is as follows:
At about 9:00 p. m. plaintiff Rabago (appellant) went to a public dance hall. The dance hall had two stories. Drinks could be purchased both upstairs and downstairs. After being at the dance hall for approximately half an hour plaintiff had a Seven-Up and whisky drink.
Defendant Meraz (respondent) arrived at the ballroom between 9:30 and 10:00 p. m. Defendant could not exactly recall how many drinks he had before he met plaintiff but had approximately two beers more or less outside of her presence.
At approximately 11:30 p. m. plaintiff and defendant went upstairs and danced. While upstairs defendant ordered a seven-high drink for plaintiff and introduced witness Maldonado to plaintiff. The three of them consumed additional drinks.
Witness Magana met plaintiff, defendant and Maldonado at the ballroom. He met defendant first. At approximately 1:45 a. m. witness Magana told plaintiff, defendant and Maldonado that he had to leave because he was going to a party and was going to call for a taxi. Defendant stated to Magana that he did not have to call a taxi but that he, defendant, would take him. Magana then indicated that he would contact the people at the party so that he could invite plaintiff, defendant and Maldonado to the party.
The four named people then left the barroom. Defendant went to a liquor store across the street and bought a half-pint of Seagram's V-O Whisky. Magana and plaintiff stayed outside of the store. The testimony was to the effect that each of the four people had a drink out of the bottle and that plaintiff kept the bottle. The group entered defendant's car. Defendant was seated in the driver's seat, plaintiff sat next to him, Magana sat in the front seat on the right side, and Maldonado was in the back seat.
Plaintiff testified that the three riders in the car told defendant, 'Don't go so fast.' To this defendant stated, 'Oh, don't worry, nothing happened, I'm all right.'
There was testimony to indicate that during the time the car was in motion plaintiff was acting in a very affectionate manner toward the defendant and among other things was kissing the defendant. Defendant testified that when he left the ballroom he was overtired and sleepy from working that day, and also because it was two o'clock in the morning. Defendant denied he was intoxicated and denied that he appeared to be intoxicated.
Plaintiff introduced into evidence (Plaintiff's Exhibit 12) a certified copy of a municipal court docket entitled People of the State of California v. Luis Reynoso Meraz, No. V 79484. This certificed copy of the aforementioned court docket sets forth in pertinent part as follows:
'April 13, 1959, cause called. Judge Steven S. Weisman presiding. Both parties ready. People represented by Arthur Karms, Deputy City Attorney. Defendant represented by Manuel Q. Sanz. Defendant in court, duly arraigned, informed of the charge against him and of his legal rights. Defendant gives true name as charged and enters his plea of guilty of the offense charged: violation of section 502, Vehicle Code.'
Vehicle Code 1959, §§ 13550, 23102.
The other material facts necessary to the disposition of the case involved will be set forth in the body of the opinion under the appropriate headings.
Plaintiff's first contention is that the trial court erred in refusing to instruct the jury on her theory that she was an involuntary passenger.
Plaintiff testified that, prior to the accident, she protested against the manner in which defendant was operating his automobile and demanded that defendant stop the automobile and allow her to alight therefrom, and that defendant failed and refused to do so.
Plaintiff's inability adequately to express herself in English is demonstrated by the reporter's transcript of her testimony. The reporter's transcript discloses the following in pertinent part relative to plaintiff's requests to leave defendant's automobile:
Plaintiff submitted the following instructions relative to her purported status as an involuntary passenger:
'PLAINTIFF'S PROPOSED INSTRUCTION NO. D 'If the defendant is liable at all, the foundation of his liability if plaintiff was a guest is different from the basis of liability if plaintiff was a passenger.
'Although in a layman's language a person can be both a guest and a passenger, in law the two words differ in meaning.
'An guest is one who is invited to enjoy the hospitality of the driver of a vehicle and who accepts such hospitality.
'Where, however, a person accepting such hospitality, thereafter over her objection and against her volition becomes an involuntary occupant of such vehicle, she then ceases to be a guest, in law, and becomes a passenger.
'If the plaintiff was a passenger while riding with defendant at the time of the accident, the defendant owed to his passenger the duty of exercising ordinary care, and if any negligent conduct on defendant's part was a proximate cause of injury to plaintiff, defendant is liable.
'If, however, plaintiff was a guest of the defendant, a different rule of liability applies, and that rule now will be stated to you.
'BAJI No. 209, as modified.
'Hollingum vs. Moore, 102 Cal.App.2d 509
PLAINTIFF'S PROPOSED INSTRUCTION NO. F
'If at the time the accident occurred in this case plaintiff was an involuntary occupant of defendant's automobile, then plaintiff was not at the time a guest of defendant, since one cannot be a guest without her consent. She would in such event be a passenger in defendant's automobile.
'Hollingum v. Moore, 102 Cal.App.2d 509 [227 P.2d 845]
'Barr v. Carroll, 128 Cal.App.2d 23 [274 P.2d 717]'
Defendant, in support of the trial court's refusal to instruct on the theory of 'involuntary occupant,' contends first that the 'Doctrine of Involuntary Occupant Was Not at Issue Under the Pleadings or the Pre-Trial Order' and secondly, that defendant 'Did Not Voluntarily Litigate Any Issue Relating to Appellant as an Involuntary Occupant.'
Plaintiff filed her complaint for personal injuries on September 23, 1959. The substance of the first cause of action was that plaintiff was a guest in defendant's automobile and that defendant 'was under the influence of intoxicants, and his faculties were substantially impaired thereby.' The gist of the second cause of action pleaded therein was that plaintiff was a passenger in defendant's automobile and that defendant was negligent.
Plaintiff did not allege in her complaint that she was a passenger for hire--she did not allege that she gave compensation for the ride. By the same token she did not allege that she was an 'involuntary passenger.'
The first question is whether plaintiff, by her allegation that she was a 'passenger' in defendant's automobile, raised the issue of 'involuntary passenger.'
The word 'passenger' is not used in Vehicle Code section 403. This section provides in part as follows:
Now Vehicle Code, section 17158 (Stats. 1959, c. 3, p. 1655, § 17158.)
'No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of the vehicle * * * unless the plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or wilful misconduct of the driver.'
However, through judicial decision, the word 'passenger' has become a word of Martinez v. Southern Pac. Co.,
Thompson v. Lacey, Whitmore v. French, Bowman v. Collins, Ray v. Hanisch, Baker v. Novak,In Rocha v. Hulen, 6 Cal.App.2d 245, 44 P.2d 478 the court held that an 'involuntary occupant' is neither a guest (to be a guest 'imports both a knowing and a voluntary acceptance, and does not include either involuntary or a forced ride.' p. 252, 44 P.2d p. 482) nor a passenger (a passenger is one who accepts a ride and returns compensation in some form).
In Hollingum v. Moore, 102 Cal.App.2d 509, 227 P.2d 845, the plaintiff's complaint set forth, and the court found, that at the time of the injuries plaintiff was a guest in defendant's automobile. The judgment was based upon the finding of defendant's wilful misconduct. The evidence in that case disclosed that plaintiff had demanded that defendant let him out of the car. The court stated, as dictum, at page 511, 227 P.2d at page 846 as follows in pertinent part:
'The case might well have been tried on the theory that plaintiff was not a guest and hence defendant was liable for ordinary negligence on either of two theories. 1. In accompanying defendant to see plaintiff's wife about buying her house it would seem that plaintiff was giving a benefit to the driver. (Citations). [i. e. Plaintiff was a passenger.] 2. When defendant took plaintiff against his will in a direction away from the destination agreed upon it would appear that he was not a guest since one cannot be a guest without his consent. Rocha v. Hulen, 6 Cal.App.2d 245, 253-254, 44 P.2d 478 [i. e. involuntary occupant].' (Emphasis added.)
We do not believe that plaintiff raised the issue of 'involuntary occupant' or 'involuntary passenger' merely by pleading that she was a 'passenger' in defendant's automobile. There is nothing to indicate that plaintiff used the word 'passenger' in any sense other than one who gives compensation. This position is fortified by the statements contained in the joint pre-trial statement and pre-trial conference order.
In plaintiff's proposed instructions D and F it is clear that plaintiff is using the word 'passenger' to apply to an involuntary passenger or involuntary occupant. The proposed instructions correctly state the law.
On January 13, 1961, the pre-trial conference order was filed. The order, among other things, incorporated by reference the parties' joint pre-trial statement. The joint pre-trial statement provides in partinent part:
'In her [i. e. plaintiff's] Second Cause of Action plaintiff alleges that she was a passenger in said automobile, and that said collision proximately resulted from the negligent operation of said automobile by said defendant.' (Emphasis added.)
The issues are delineated in the above joint pre-trial statement. The first issue set forth therein is '1. Whether plaintiff was a guest or passenger in said automobile at the time of said collision.'
The pre-trial order, for the first time, recites that 'plaintiff alleges that she was a passenger for hire and that defendant was guilty of negligence which proximately caused her injuries.' (Emphasis added.)
On January 17, 1961, a stipulation to amend the pre-trial conference order was filed. Therein it was stipulated by the parties that the pre-trial order 'may be amended to add to the defendant's contentions a denial by the defendants [sic] that the plaintiff was a passenger for hire.' (Emphasis added.)
From the above it is obvious that the issue of involuntary passenger was not made The next question is whether plaintiff's purported status as an involuntary passenger became an issue during the trial itself--whether the issue was litigated. If it did, then it is clear that plaintiff was entitled to have the jury instructed on her theory of the case. It is stated in Mau v. Hollywood Commercial Buildings, Inc., 194 Cal.App.2d 459, 466, 15 Cal.Rptr. 181, 186 as follows:
' Each party is entitled to have his theory or theories of the case submitted to the jury in accordance with the pleadings and proof where there is substantial evidence in the record justifying the giving of the instructions. The existence or nonexistence of substantial evidence is a question of law. In ascertaining whether it was error for the trial court to refuse to give appellant's instructions, this court views the evidence in the light most favorable to appellant. Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 255 P.2d 795; Dyer v. Knue, 186 Cal.App.2d 348, 8 Cal.Rptr. 753; Edgett v. Fairchild, 153 Cal.App.2d 734, 738, 314 P.2d 973.'
A reading of the reporter's transcript discloses that the attorneys for both plaintiff and defendant questioned witnesses relative to whether plaintiff requested that defendant let her out of his automobile.
Plaintiff's testimony relative to this matter already has been set forth in footnote 1.
The reporter's transcript discloses that defendant testified on direct examination as follows:
'Q Well, up to the time that this accident happened, did Mrs. Rabago [plaintiff] ever indicate that she wanted to get out of the automobile?
'A Again, no.'
A defense witness, Mr. Magana, testified in pertinent part as follows:
1. Direct examination:
'Q Did you ever see Mrs. Rabago indicate that she wanted to get out of the car?
'A No.'
2. Cross-examination:
'Q And you told me at that time, didn't you, George, that you had told Mr. Meraz [i. e. defendant] that he was going too fast?
'A Right.
'Q And that you thought you remembered Mrs. Rabago also telling him that he was going too fast and asking him to stop and let her out, she didn't want to go to the party? Do you remember your telling me you thought you remembered that?
'A No. You suggest if I did remember Mrs. Rabago saying that.
'Q What did you tell me?
'A I said, 'Maybe I did', but I'm sure that I told you.
'Q So that at that time you thought maybe she did say that.
'A Maybe I did here, that is what I told you; but I'm sure, myself.
'Q You are sure you said it and you think maybe she said it, or at least you thought at that time maybe she said it.
'A That's right.'
Defendant takes the position that the evidence relative to plaintiff's purported requests to get out of defendant's automobile did not constitute a voluntary litigation of an unpleaded issue--i. e. that it did not interject the issue of 'involuntary passenger' into the case so as to give plaintiff the right to have the jury instructed on this theory.
The gist of defendant's contention that the issue of 'involuntary passenger' was not litigated is that the testimony relating to plaintiff's purported attempts to get out of defendant's car was material to the issues of contributory negligence and assumption of risk (issues in the trial under the Miller v. Peters,
We believe that because of the peculiar circumstances presented in the case at bar the rule relied upon by defendant should be relaxed--that plaintiff's position should be viewed liberally. (See Vaughn v. Jonas, 31 Cal.2d 586, 191 P.2d 432.)
In Vaughn v. Jonas, supra, 31 Cal.2d 586, 191 P.2d 432, the plaintiff sued for damages resulting from a gunshot wound, but did not raise the issue of exemplary damages in the pleadings. The trial court gave plaintiff's requested instructions on exemplary damages. Defendant contended that the evidence which showed malice was admissible as relevant to some other issue in the case, and hence that his failure to object to such evidence did not constitute acquiescence in the trial of the issue of malice as a basis for the award of exemplary damages. In essence, defendant in the Vaughn case raised the same argument that defendant (respondent) in the case at bar relies upon.
In the Vaughn case Mr. Justice Schauer, in speaking for the majority of the court, indicates that 'the proposed instructions were served and presented 'before the first witness [was] sworn,' and, hence, that the defendant knew, at least from that time onward, that the plaintiff was claiming exemplary damages.' (p. 605, 191 P.2d p. 444.)
The Vaughn case would seem to indicate that one who is warned by a requested instruction or otherwise that his adversary intends to exceed his pleadings must regard the offered evidence from a double view-point and note the fact that he is objecting to it insofar as it may be intended to enlarge the issues. Or, as in the case at bar where defense counsel presented evidence on plaintiff's purported requests to leave defendant's automobile, make it clear that by so doing defendant is not voluntarily expanding the issues.
An examination of the record makes it clear that plaintiff was not in fact relying on the theory that she was a passenger for hire. Plaintiff did not even submit instructions concerning passenger for hire status. There was no evidence introduced which would have supported the giving of an instruction on passenger for hire status.
The peculiar circumstances of the case at bar which requires a liberal view of plaintiff's (appellant's) contentions is the compound error committed by the trial court. Not only did the court fail to instruct on plaintiff's theory of being an involuntary passenger, but the court did instruct on passenger for hire--this in spite of the fact that there was no evidence to support the giving of the instruction. The following instruction was requested by the defendant and given by the court:
'209* GUEST OR PASSENGER? DEFINITION OF EACH--RULE OF LIABILITY AS TO PASSENGER.
'A basic issue to be determine by you in this case is whether plaintiff ANITA RABAGO was a guest of the defendant LUIS REYNOSO MERAZ at the time of the accident in question.
'2. This issue is termed a basic one because the question of defendant's possible liability does depend on whether plaintiff was a guest or a passenger; the foundation of liability differs significantly between the two relationships.
'5. Although in a layman's language a person can be both a guest and a passenger, in law the two words differ in meaning.
'6. 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 in such vehicle either for his own pleasure or on his o2n [sic] business, without making any return to, or conferring any benefit upon, the driver of the vehicle as compensation for the ride (, [sic] other than the mere pleasure of the rider's company). '9. The compensation required to make a person a passenger, rather than a guest, need not be money and need not be paid directly by such person. If, as the chief inducement for the transportation, any benefit is conferred on the driver, which has a then present pecuniary value although that value may never ripen into material gain, the person transported is a passenger, not a guest.
'11. If the plaintiff was a passenger while riding with defendant at the time of the accident, the defendant owed to (his) passenger the duty to exercise ordinary care, and if any negligent conduct on defendant's part was a proximate cause of injury to plaintiff, defendant is liable (provided, of course, that the plaintiff was not guilty of contributory negligence).
'If, however, plaintiff was a guest of the defendant, a different rule of liability applies, and that rule now will be stated to you.
'B.A.J.I. #209* (Fourth Edition as Revised)'
Defendant in substance contends that the error of giving the instruction was favorable to plaintiff and therefore she should not complain. Defendant (respondent) states in his brief that the 'Court's action in instructing on the guest or passenger issue gave Appellant a second shot at liability, e. g., the different standard of care applicable to a passenger.'
There being no evidence in the record indicating that plaintiff was a passenger for hire, the giving of the instruction did not give plaintiff 'a second shot at liability.' It would have been error for the jury to have found that plaintiff was a passenger for hire.
It is established that an instruction that is surplus--not supported by any evidence--may be confusing, misleading and prejudicial to the case. (Bua v. G. I. Taxi Co., 186 Cal.App.2d 612, 9 Cal.Rptr. 118; Untalan v. Glass, 190 Cal.App.2d 474, 12 Cal.Rptr. 1.)
We believe that the error of refusing plaintiff's instructions on the issue of 'involuntary passenger' coupled with the error in giving defendant's instruction on 'passenger for hire' requires a reversal of the case. We deem it unnecessary to discuss plaintiff's remaining contentions.
The judgment is reversed.
WOOD, P.J., and LILLIE, J., concur.
(1) Direct examination:
'Q * * * What did you notice when you got in the front seat as he was driving?
'A Well, that go faster, and then he goes near to the cars; and then I noticed there was something happened to him, you know.
'Q When you saw him going faster, did you say or do anything?
'A Well, yes. Everybody was in the back. The rest of the boys were telling him, too, at the same time I was, 'Take it easy. Don't go so fast.'
'So he said, 'Well, don't worry, nothing happen.'
'Q Then what did you say--anything further after that?
'A After that I want to get off, better I don't want to go to the party.
'Q Did you tell him that?
'A That's right.
'Q What did you say?
'A 'I want to get up from the car.'
'Q And why did you say that?
'A Because I was scared, you know, something happen, the way he was driving the car.
'Q And how was that? How was he driving at that time, when you said you want to get out?
'A You know, he went this way and this way (indicating).
'I don't know how to say, ladies and gentlemen, for my English--I'm not speaking
'Q You indicated with your hands different directions.
'A You know, just go not straight. They supposed to go straight, you know, but take the--I mean, I can't explain. I'm sorry.'
'(2) Cross-examination:
'Q BY MR. ARAGON: When you were asking to get out of the car, specifically what were you saying? Do you understand the question I just asked you?
'A You mean when I was asking, when I saw him was driving the car not right, he was going fast?
'Q What are the words you used; what did you say?
'A I mean that when he was driving the car fast, Mr. Meraz, I told him that I want to get off from the car; I don't want to go to a party.
'Q Is that just what you said?
'A Yes.'