Tucker v. Landucci

SCHAUER, J.

Defendant Bertha Alice Landucci, hereinafter called defendant, appeals from a judgment entered upon a jury verdict in favor of plaintiff, in an action to recover for personal injuries sustained when plaintiff was riding in an automobile driven by defendant.

1

Plaintiff bases her action on two separate theories: (1) that she was a passenger for consideration in defendant’s automobile; and (2) that defendant was guilty of wilful misconduct. Defendant, although conceding her simple negligence, contends that the evidence is insufficient to support a recovery upon either theory. For reasons hereinafter stated, we have concluded that the judgment should be upheld upon the theory that plaintiff was a passenger.

The collision in which plaintiff was injured occurred on August 8, 1959, in the City of Fresno, California. At that time plaintiff, defendant, and one Mrs. Castle, were employes of Rhodes Department Store in Fresno. Plaintiff was assistant buyer of the ladies’ ready to wear department; defendant was a saleslady in another department, known as the junior wear, which was supervised by an assistant buyer named Mrs. Abbott; and Mrs. Castle was the chief buyer or manager over both of these departments.

During working hours on the day of the accident, a Saturday, Mrs. Castle had accepted defendant’s invitation to take her to dinner and had suggested that plaintiff be included, to which defendant agreed. Prior to closing time on the same day Mrs. Castle invited plaintiff and Mrs. Abbott to go to a cocktail lounge across the street from Rhodes, and to have a drink to celebrate both plaintiff’s and Mrs. Abbott’s birthdays.

About 6 p. m., just after closing time, Mrs. Castle, Mrs. Abbott and defendant went to the cocktail lounge where they were joined a short time later by plaintiff after she bad finished her duties at the store. While having two or three.

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drinks at the cocktail lounge a discussion arose concerning a fashion show which was to be held at the store the following Monday. Mrs. Castle was in overall charge of the show and was to act as commentator, and plaintiff was to participate in the show and also to conduct it from backstage. Plaintiff had worked with Mrs. Castle on preceding fashion shows for Rhodes.