Frankenstein v. House

California Court of Appeal Dec 5, 1940 No. Civ. 12643Published

Before: Moore

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Holding. The court held that a passenger who remains in a vehicle during a temporary stop as part of a gratuitous ride is a guest under Section 403 of the Vehicle Code, barring recovery for simple negligence. Furthermore, the court held that denying leave to amend was not an abuse of discretion because the proposed amendments failed to allege facts sufficient to overcome the guest statute.

Issues

Did the trial court err in sustaining the demurrer to the complaint without leave to amend?
Was it an abuse of discretion to deny the plaintiff the privilege of amending her complaint?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The proposed language constituted no substantial amendment. Consequently there was no abuse of discretion by the trial judge.”

MOORE, P. J.

Plaintiff appeals from a judgment sustaining a demurrer to the first and second counts of her complaint without leave to amend. The third count was excepted from said ruling but it was subsequently dismissed on motion of plaintiff.

[814]

The charging part of the first count is contained in paragraphs 1 and 2, which are as follows:

“I

“That on or about the 29th day of March, 1938, plaintiff was invited by defendant to go for a ride in his Buick automobile. That plaintiff is an elderly woman of the age of seventy years and is unfamiliar with the operation of automobiles. That at said time defendant drove said automobile, which plaintiff was an occupant thereof, to 814 Bonnie Beach Street, in the city of Los Angeles, County of Los Angeles, State of California, parked said automobile on a steep hill in front of said address and brought said automobile to a complete stop. That subsequently and after the aforementioned ride had ceased, defendant did negligently and carelessly leave said automobile unattended while plaintiff was an occupant in the rear seat thereof.

“II

“That as a direct and proximate result of said carelessness and negligence of the defendant, as aforesaid, said automobile rolled down the hill on said Bonnie Beach Street, causing plaintiff to be violently thrown and hurled from said automobile to the street.”

The charging part of the second count consists of paragraph II of the first count by adoption and paragraph II of the second count, which is as follows:

“II

“That on or about the 29th day of March, 1938, plaintiff was an occupant of a Buick automobile owned by defendant. That plaintiff is an elderly woman of the age of seventy years and is unfamiliar with the operation of automobiles. That at said time, and while said car was parked on a steep hill on Bonnie Beach street, in the city of Los Angeles, county of Los Angeles, state of California, defendant did negligently and carelessly fail to set the brakes and gears on said automobile, and did carelessly and negligently leave the same unattended while plaintiff was an occupant in the rear seat thereof”.

Frankenstein v. House

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MOORE, P. J.

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