Thompson v. Lacey

CARTER, J.

A judgment of nonsuit, the subject of this appeal, was entered in plaintiff’s action for the death of her husband, Virgil T. Thompson, allegedly caused by the negligence or wilful misconduct of Donald Kerns in operating a car in which Thompson was riding. The administrator of the Kerns’ estate is defendant, plaintiff having dismissed the action as to defendants Kelley-Moyer Transportation Company and Charles Fogle.

The sole issues are whether Thompson was a guest or passenger in the ear being driven by Kerns when Thompson,riding therein, met his death, and, if the former, whether Kerns was guilty of wilful misconduct thus being liable although Thompson was a guest.

No person who as a guest accepts a ride in a vehicle without giving compensation has a right of action for damages against the driver unless he establishes that the damages were caused by the intoxication or wilful misconduct of the driver. (Veh. Code, § 403.) “The designations ‘passenger’ and ‘guest’ have been adopted for the purpose of distinguishing a person who has given compensation within the meaning of section 403 of the Vehicle Code from one carried gratuitously.”

(Whitmore

v.

French,

37 Cal.2d 744, 746 [235 P.2d 3].) No question concerning Kerns’ negligence is presented.

At the time of the accident Kerns was driving his car with Thompson riding in the front seat with him and Mr. Dreis

[445]

in the back seat. In endeavoring to pass a car ahead of him in foggy weather, Kerns’ car collided head on with an oncoming truck. Kerns, Thompson and Dreis were employees of Arrowhead and Puritas Water Company and were en route from San Diego to Los Angeles.

*

Kerns was manager for the company in the San Diego area. Under his supervision were Dreis and Thompson, each of whom was a sales supervisor for a portion of that area; their duty was to supervise the selling and delivery activities of salesmen selling and delivering bottled water, the company’s product. Before the day of the accident, Kerns, Thompson and Dreis received notice from the company requesting that they attend a company meeting in Los Angeles of all the branch managers and sales supervisors. The meeting was one of a series of regular monthly meetings inaugurated in 1950 (prior to that time the meetings had been irregular) and it was necessary that all three attend because the matter to be considered was important to them and to the company in their work and its business. While there was no “set” policy for transportation of the employees to the meetings, that is, they could come by private car or public transportation, as they chose, the company knew Thompson and Dreis had ridden with Kerns in the latter’s car to attend several meetings and did not object. The company reimbursed the employees for expenses incurred in coming to the meetings, including an allowance of 7 cents a mile for the first 500 miles when a private car was used. The employee driving his car to the meeting would get the mileage, and those riding with him would not, which was “more economic” for the company as expressed by Swanburg, the company’s manager of all branches, and is plainly inferable from the evidence.