Squires v. Riffe

THE COURT.

An order of transfer of this cause was made on account of the reference in the opinion of the District Court of Appeal to the cases of

Smellie

v.

Southern Pac. Co.,

(Cal.) 287 Pac. 343, and

Krause

v.

Rarity,

(Cal. App.) 285 Pac. 879. At the time of the order of transfer these two cases were before us, in the former of which a rehearing had been granted, and in the latter a transfer had been ordered. These cases were cited in support of the conclusion that section 141% of the California Vehicle Act was not applicable to the instant case. Since the transfer of this case to this court we have decided the case of

Krause

v.

Rarity,

which is reported in 210 Cal. 644 [193 Pac. 62], and have held therein that said section 141%' does not affect pending actions. We deem it unnecessary, therefore, to further discuss that question. We have, therefore, eliminated from the opinion of the District Court of Appeal all reference to said question. We adopt the remaining portion of said opinion as the opinion of this court. It was written by Presiding Justice Finch, concurred in by Justices Plummer and Thompson, and with the exception above noted is as follows:

“The plaintiff recovered judgment for damages in the sum of $5,000 for the death of her husband, George E. Squires, alleged to have been caused by the negligent operation of an automobile owned by the defendant Winnie Riffe and driven by the defendant Tallman. Winnie Riffe has appealed from the judgment.

“At the time of and prior to the accident the appellant owned and' conducted a hotel at Upper Lake, Lake county. Tallman is the appellant’s brother. He had been doing ‘odd jobs and errands’ for her for many years, sometimes using her automobile in going on such errands. She also permitted Tallman and his wife to use her automobile ‘on their private errands’. Tallman’s wife was a waitress in the hotel. Tee Ock was employed by the appellant as a cook in the hotel.

“Tallman, his wife, Squires and Tee Ock left Upper Lake in appellant’s automobile shortly before 10 o’clock in the evening on September 15, 1928. It does not appear at whose invitation Squires rode in the machine. They drove to