Sumner v. Edmunds

Respondent had judgment against appellants Edmunds and Fresno Republican Publishing Company, a corporation, for and on account of personal injuries sustained in an automobile accident which occurred near the city of Fresno on December 17, 1929. The case was tried by the court without a jury, and from a judgment rendered against them said defendants have taken this appeal.

The facts may be summarized as follows: Appellant Edmunds was employed by Fresno Republican Publishing Company, a corporation, to deliver papers; respondent wished to work for the publishing company, and had previously talked with one Carrie, manager of the auto routes for the publishing company, regarding such employment, and Carrie told him that he would be given an opportunity should a vacancy occur. Appellant Edmunds called on respondent the night before the accident and asked him to meet him at the publishing company’s office the next morning to accompany, him on the route in order to familiarize himself with the route; they met at the appointed hour, and respondent was taken by appellant Edmunds in his automobile and proceeded on the route. Respondent did not negotiate with Edmunds for taking over the route; he did not pay anyone transportation charges, nor did he receive compensation from anyone. Appellant and respondent proceeded along the highway, in a northerly direction, to a point just north of Roeding Park near the city of Fresno. Appellant Edmunds was driving the automobile on the right-hand side of the road, and upon coming to a point where he was to make delivery of a paper to a subscriber, he ^hanged his position to the left-hand side of the highway, and proceeded along the left-hand side of the highway for some distance, when he turned suddenly back to his right, driving his car into a truck proceeding in a southerly direc

Appellants contend that the evidence does not sustain certain findings essential to the validity of the judgment rendered against them. The particular findings to which our attention is directed are findings No. 2, “ ... that plaintiff was riding as a guest with the knowledge and consent and at the request of' defendants Wm. J. Edmunds and Fresno Republican Publishing Company . . . finding No. 3, “ ... that defendant Wm. J. Edmunds drove and operated his said automobile in a careless, reckless and grossly negligent manner ... finding No. 8, “ ... that it is true that as a proximate result of the carelessness, recklessness and gross negligence of said defendants . . . said plaintiff received injuries ... ”; finding No. 15, “That it is not true that on the 17th day of December 1929 plaintiff was an employee of the defendant Wm. J. Edmunds, and that the injury sustained by said plaintiff arose out of his employment ... finding No. 16, “That it is not true that on the 17th day of December 1929 plaintiff was employed by the defendant Fresno Republican Publishing Company ...”

The court found: "That it is true that said defendant Wm. J. Edmunds was driving his automobile for and on behalf of and at the direction and as an employee and agent of and in the course of his employment with said defendant Fresno Republican Publishing Company.”

Appellants concede that the evidence is sufficient to support the finding just quoted.

Since the appellants question the sufficiency of the findings, it becomes necessary to examine the testimony taken at the trial to determine whether there is sufficient support in the evidence for the findings.

On direct examination respondent Sumner testified in part as. follows: “Q. How did you happen to be with Mr. Edmunds this morning of the accident? A. Well he came out to my house where I was living the night before the accident, . . . Q. Had you talked to Mr. Edmunds prior to the night before, when he came out to your house? A. No, sir. Q. Had you talked with anyone about anyone coming out to your place that night? A. Well Mr. Carrie told me that he would have . . . Mr. Edmunds come out and drop me a

Appellant Edmunds testified in part as follows: “Q. Well Mr. Sumner was riding with you at the time of the collision wasn’t he? A. Yes, sir, he was. Q. Was he paying you anything for that ride? A. No, sir. Q. You knew he was going to ride with you in the automobile when you started out? A. Yes, sir. . . . Q. You say you drove over the center of the highway? A. Yes, sir. Q. Now, will you explain just what you mean by that? A. Well the—■ Q. With reference to the white center line? A. We were approximately centering the white center line. Q. That is your ear was centering it? A. Yes, sir. Q. So that the left hand wheels would be on the left hand side of the center line and

Does the testimony warrant findings of gross negligence ? It is admitted by appellants that the automobile was being driven in the night-time on the wrong side of the highway. Appellant Edmunds says that he had good lights on his automobile capable of discerning objects 200 feet away, and says that he did not see the trucks until one-fifth of a

In the recent case of Kastel v. Stieber et al., 215 Cal. 37 , at page 46 [ 8 Pac. (2d) 474 , 477], the court, in discussing gross negligence, says:

" 'That the defendants were violating a statute of the state stands admitted; therefore the language of the Supreme Court in Benjamin v. Noonan, 207 Cal. 279 [ 277 Pac. 1045 , 1046], is pertinent, to-wit: “While it is undoubtedly correct to say that the act of driving a vehicle over a street or public highway beyond the speed limit established by a municipal ordinance or a statute merely constitutes evidence of negligence in eases where damages has followed the infraction of such an ordinance or law, the rule in this state is, however, that it is conclusive evidence of negligence. (Citing cases.) Therefore the statement that such an act is ‘of itself negligence’ or 'negligence as a matter of law’ or ‘negligence per se’ (equivalent expressions) is, in this state strictly correct.” (Citing a number of authorities.)

“ ‘In 45 C. J., page 678, the rule is thus stated: “Violation of a statute or ordinance does not of itself constitute wilfulness or wantonness, but it may be considered as a circumstance tending to show that the act or omission in question was wilful or wanton, as being entirely regardless of the law and the safety of others." In this state gross negligence does not involve the elements of either wilfulness or wantonness. If the intent to do the act constituting negligence is present, it is not necessary that it be wilful or wanton in

order to conclude that the circumstances surrounding the performance of the act establish gross negligence.

“ ‘In the recent case of Malone et al. v. Clemow et al., 111 Cal. App. 13 [ 295 Pac. 70 , 71], we find the meaning of the words ‘ ‘ gross negligence ’ ’ considered. It is there said: "Gross negligence has been defined to be the want of slight diligence." (Redington v. Pacific Postal Telegraph Cable Co., 107 Cal. 317 [ 48 Am. St. Rep. 132 , 40 Pac. 432 , 434]; Walther v. Southern Pac. Co., 159 Cal. 775 [ 37 L. R. A. (N. S.) 235 , 116 Pac. 51 ]; Shearman & Redfield on Negligence, sec. 49; Krause v. Rarity et al., 210 Cal. 644 [ 77 A. L. R. 1327 , 293 Pac. 62 , 66]; Coit v. Western Union Tel. Co., 130 Cal. 657 [ 80 Am. St. Rep. 153 , 53 L. R. A. 678 , 63 Pac. 83 ] Helme v. Great Western Milling Co., 43 Cal. App. 416 [ 185 Pac. 510 , 512]; 19 Cal. Jur. 554.) In the recent case of Krause v. Rarity, supra, the Supreme Court in considering the meaning of the phrase “gross negligence” as used in section 141% of the California Vehicle Act said: “In many jurisdictions the division of negligence into degrees is not countenanced (20 R. C. L. 21), the concept being that such phrases as ‘gross negligence’ and ‘slight negligence’ are misnomers. In this state the degrees of negligence have been frequently recognized. The term 'gross negligence’ has been defined as ‘the want of slight diligence’, as ‘an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the things and welfare of others’, and as ‘that want of care which would raise a presumption of the conscious indifference to consequences’.” We should not confuse “gross negligence” with “wilful misconduct”, because there is a clear distinction between the two terms. ’ ”

The next question presented by this appeal is whether the evidence in this ease is sufficient to support the finding that respondent was not an employee of the appellant Edmunds, or appellant Fresno Republican Publishing Company. The testimony shows that he had merely offered his services which had not yet been accepted, either by appellant Edmunds or by appellant Fresno Republican Publishing Company; that he had been invited by them to go with appellant Edmunds to learn the route so that he might take it in case a vacancy occurred at some time in the future. There is no evidence showing that respondent’s offer of his

Appellants argue at length in their attack on finding number two that respondent was not a guest of appellants, and rely upon the case of Crawford v. Foster, 110 Cal. App. 81 [ 293 Pac. 841 , 842]. Section 141% of the California Vehicle Act defines a guest as follows: “For the purpose of this section the term guest is hereby defined as being a person who accepts a ride in any vehicle without giving compensation therefor.” In considering this section, the court in the Crawford case, supra, says: “We think the meaning of the language used is, that a guest is one who is invited, either directly or by implication, to enjoy the hospitality of a driver of a car; who accepts such hospitality; and who takes a ride either for his own pleasure or on his own business, without making any return to or conferring any benefit upon the driver of the car, other than the mere pleasure of his company.”

In the Crawford case, supra, the plaintiff was injured while riding in an automobile which was being demonstrated to the plaintiff by defendant Martins, who was the agent of defendant Foster. Defendant Foster was in the business of selling automobiles and defendant Martins was one of his salesmen. The court says in that case, at page 85:

“The relationship between the parties here is not entirely dissimilar to that existing between the owner of a store and a customer using an elevator therein. In such a case, the Supreme Court has said: ‘Naturally this facility of transportation would increase its patronage and necessarily its profits in business. In fixing the price at "which its goods and merchandise must be sold so as to return a profit, necessarily the operating expenses of the establishment, including this elevator service, must be taken into consideration and provided for. The prices charged and paid by customers for goods would include a reimbursement to appellant for its expenses entailed in the operation of the elevator for its patrons, and hence would constitute a sufficient reward for their carriage so as to bring appellant within the category of a carrier of passengers for hire and subject to the same

duties and responsibilities.’ (Champagne v. Hamburger, 169 Cal. 683 [ 147 Pac. 954 , 958].)

“The indirect benefit to the merchant is in that case held to be compensation for a ride in an elevator. A similar benefit appears in the instant case, which we think must be held to be a compensation, given and received, for the ride in question. While the respondents may not have been passengers for hire, having given compensation for the ride, they were not guests. . . .

“In Massachusetts, although they have no statute similar to the one here in question, the rule has been established that where an invited guest is riding in a machine with the owner thereof, he cannot recover for injuries sustained, unless the owner and driver of the car was guilty of gross negligence. (Massaletti v. Fitzroy, 228 Mass. 487 [Ann. Cas. 1918B, 1068, L. R. A. 1918C, 264, 118 N. E. 168 ]; West v. Poor, 196 Mass. 183 [ 124 Am. St. Rep. 541 , 11 L. R. A. (N. S.) 936 , 8 N. E. 960 ].) But in applying the rule, the courts of that state have distinguished between cases where one is a mere guest of another and has been permitted to ride gratuitously, and cases where one, in riding, is conferring some benefit upon the driver of the car. (Lyttle v. Monte, 248 Mass. 340 [ 142 N. E. 795 ]; Jackson v. Queen, 257 Mass. 515 [ 154 N. E. 78 ]; Labatte v. Lavallee, 258 Mass. 527 [ 155 N. E. 433 ]; Loftus v. Pelletier, 223 Mass. 63 [ 111 N. E. 712 ].) Not only is such a distinction a logical one, but that it was intended by the statute here in question is indicated by the use of such broad words as ‘giving compensation’, instead of words limiting the meaning to the payment of a fare, or the transfer "of a definite consideration.”

In the case at bar we have found that respondent was not an employee of appellants. The evidence shows that he was traveling with appellant Edmunds at the instance and request of the appellants for the purpose of learning the paper route, so that in the future, should the occasion arise, he might be able to take the route over from Edmunds. The case just cited, Crawford v. Foster, relied upon so strongly by appellants, can afford appellants very little comfort, for if respondent was not a guest he was a passenger within the rule laid down in that ease; and it is our opinion respondent comes within that rule. In that event ordinary

We have examined the record carefully, and have quoted quite extensively from it, and in view of all the evidence we are not inclined to disturb the findings of the lower court. All the findings attacked are supported by ample evidence, and appellants cannot complain of findings of proof of gross negligence where proof of ordinary negligence would have been sufficient. Under these circumstances it is not necessary for this court to prepare new findings under section 956a of the Code of Civil Procedure.

The judgment is affirmed.

Barnard, P. J., and Jennings, J., concurred.