Lerma v. Flores

THE COURT.

Plaintiff brought suit for damages, alleging that he employed defendant to transport him and his goods by motor truck from San Lorenzo to Point Reyes in Marin County for a consideration of $20. He further alleged negligence in the operation of the truck, as the result of which he suffered bodily injury. These allegations were denied by the defendant. Later, upon motion, plaintiff filed an amendment to his complaint, alleging in substance that defendant agreed for the consideration mentioned to transport plaintiff’s furniture, and had loaded the same, whereupon the defendant invited plaintiff to ride upon the truck to its destination for the accommodation of defendant in that plaintiff might direct the defendant as to the route to be followed and furnish assistance in unloading the truck, to which plaintiff agreed; further, that defendant’s operation of the truck was so careless and reckless as to constitute misconduct, due to which plaintiff suffered the injury and damage claimed.

A trial by jury was waived, and the trial court found generally in accordance with the allegations of the complaint as amended, except that defendant was not guilty of wilful misconduct in the operation of the truck. It was specifically found that “defendant invited plaintiff to ride upon said truck, and that plaintiff did ride thereon without paying a tangible consideration therefor, but partly for the accommodation and benefit of plaintiff and partly for the purpose of guiding the defendant along the highway and enabling defendant to pursue an economical and short course to his destination; and the court further finds that plaintiff did assist and guide defendant in said manner along the highway traversed until the accident, and that defendant stopped his truck several times along the route to obtain and did

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thereupon obtain directions from plaintiff”. The court concluded that plaintiff was a passenger and the business invitee of the defendant, and entered judgment against the latter.

Defendant, who has appealed, contends that certain of the findings and conclusions of the trial court are unsupported.

The plaintiff testified to the agreement as alleged, and that on three occasions—once immediately preceding and twice during the journey—he advised the defendant, at the latter’s request, as to the condition of the roads and grades which they were to traverse and the route which they should follow. The defendant insists that these facts show that plaintiff was merely a guest within the rule declared in