Mitchell v. Kluber

[19]

FOURT, J.

This is an appeal from a judgment in favor of the defendants in a personal injury action.

Plaintiffs are husband and wife. It is alleged in the complaint that the wife was injured by the negligent conduct of Kluber (that in walking Kluber collided with Katharine Mitchell and caused her to fall to the sidewalk, thereby bringing about the injury). The husband sought to recover medical expenses. Hereinafter the wife will be referred to as the plaintiff. Judgment was in favor of the defendants.

A résumé of some of the facts as developed by the evidence is as follows: Carrie Repp, sued herein as a Jane Doe, and dismissed as a defendant at the pretrial, was the assistant clerk and treasurer of the church above named. Among her duties she was to count and deposit the moneys collected at the Sunday services in a bank with off-banking hours depositary facilities. Mr. Kluber was a member of the church who attended services and from time to time assisted in the counting and depositing of the funds and acted in part as a guard to Carrie Repp. Kluber performed his services as a volunteer and received no money compensation for his work.

At the church services on June 9, 1957, a collection was taken at the church and the money so collected was counted and prepared for deposit in the California Bank on the north side of Wilshire Boulevard near Beverly Drive. A Beverly Hills City policeman was called for at or about the time a car driven by Carrie Repp with Kluber as an occupant thereof was to leave the church for the bank with the money for deposit. A police car arrived in due time and followed the Repp ear to the bank. Carrie Repp parked her car on Wilshire Boulevard at the north curb and to the west of the entrance-way into the bank. The policeman parked the police car to the east of the entranceway to the bank. There were some other automobiles parked between the Repp car and the police car. The sidewalk area in front of the bank was 15 feet 1 inch in width. Upon parking her car, Carrie Repp handed the depositary key to Kluber who proceeded in a northeasterly direction from the Repp car to the entranceway of the bank and made the deposit of the money in the facilities provided by the bank. Kluber looked both right and left as he walked but did not see anyone walking in the immediate area at the time. It took a matter of from one-half to three-quarters of a