Stephan v. Proctor

ROTH, P. J.

— Appellant sustained personal injuries riding in respondent’s car.

The trial court granted a motion • for nonsuit following appellant’s opening statement to the jury, as the same was supplemented by additional facts. This appeal is from the judgment of nonsuit.

Appellant asserted she would prove that she and respondent, both divorcees, were living in the same apartment house on July 23, 1961. Respondent was in the process of securing a second divorce and was extremely depressed and despondent, whereupon appellant, hoping to cheer up respondent, invited her to dinner. Appellant offered to pay for the evening’s expenses. The invitation was accepted. When the two women entered the apartment garage to proceed in appellant’s car, respondent suggested that they take respondent’s car because appellant’s ear was a convertible with the top down and

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respondent did not want to muss her hair. They drove away in respondent’s car. Appellant directed respondent where to go.

Before reaching the restaurant, the women stopped at a bar for a drink. Following the drink, respondent told appellant that she wanted to go home rather than to dinner. The accident happened en route home, respondent driving. Appellant had paid the expenses of the evening. These included one drink each woman had at the bar and the parking fee incurred.

Appellant asserts “that she was the host in inviting [respondent] out for the evening, and had promised to pay for all expenses of the evening; that she did pay such expenses as in fact arose. . . . That [respondent] had declined dinner after they reached their destination. To this was the added fact that the trip was entered upon primarily for the benefit of [respondent], to improve her mental and physical well-being by going out for the evening, in the expectation that the evening out would provide therapy or psychological relief for [respondent’s] depression.” Appellant contends that the facts hereinabove outlined establish her status as a passenger rather than a guest under Vehicle Code, section 17158.

Section 17158 provides in pertinent part that “No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride ... has any right of action for civil damages against the driver of the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to . . . the guest during the ride, unless the plaintiff in any such action establishes that the injury . . . proximately resulted from the intoxication or wilful misconduct of the driver.”