Redwing v. Moncravie

This is an action for the recovery of special damages resulting from personal injuries to a guest passenger in an automobile, alleged to have been suffered by her because of the intoxication, wilful misconduct or gross negligence of the driver of the car. The action was commenced in this form because of the statute, in force at the time the action was begun, limiting the common-law right of guest passengers to recover against their host drivers to cases of intoxication, wilful misconduct or gross negligence. The question of intoxication was eliminated from the cause at the trial. The injured woman, Rose Marie Red-wing, was married, but her husband is the sole plaintiff in the action. He had judgment for $25,000 and defendant appeals. The cause was tried by a jury.

As the judgment must be reversed and as the action may be tried again, it becomes our duty to place a construction upon the pleadings in order that on a retrial the hearing may be had upon theories different from those upon which it has already been tried and which were erroneous.

The complaint also contains these allegations: “This plaintiff further alleges that he is a full-blooded American Indian, and that he is a producer of motion pictures and that he has been engaged in the production of motion pictures for a period of four years immediately preceding the filing of this complaint. Plaintiff further alleges that he specializes in the production of Indian legends and educational pictures involving Indian lore for public schools and colleges and that he has spent the two years immediately preceding the filing of this complaint in developing the said Bose Marie Redwing as a motion picture actress in said Indian productions. That the said Bose Marie Redwing is an Osage Indian and has been featured as a leading

It is alleged in respondent’s pleading, further: “That because of said injuries herein and above referred to received by the said Rose Marie Redwing, it will be necessary that this plaintiff employ doctors, medical attendance, supplies and hospital services for the said Rose Marie Red-wing, and this plaintiff alleges, on information and belief, that it will be necessary that he incur expense in this regard in the future and that future medical expense and hospital services will be necessary for the said Rose Marie Redwing, and in these respects this plaintiff alleges he has been damaged in the sum of ten thousand dollars (<$10,000.00).”

It is too plain for argument that under these various allegations of his complaint respondent, as the sole plaintiff in the action, could have recovered no more than $10,000, although in the prayer of the pleading judgment was demanded for the sum of $160,000. This prayer cannot be considered as an ad damnum allegation (Kelly v. McDonald, 98 Cal. App. 121 [ 276 Pac. 404 ]). It is obvious, then, merely as a matter of pleading, that the verdict for $25,000 was excessive to the extent of three-fifths of the amount named by the jury.

It is also alleged in the complaint that “the defendant, against the will and without the consent of this plaintiff, induced the wife of this plaintiff, the said Rose Marie Redwing, to accompany the said defendant in an automobile operated by said defendant” on the trip which resulted in the casualty referred to in the pleading. Appellant in his answer denied this immaterial allegation. We say the allegation was immaterial because the complaint plainly indicates, as we have already remarked, that a recovery was sought upon the theory that respondent’s wife was a “guest passenger” with appellant. Certainly, a wife, within the meaning of the statute as to guest passengers, may become a guest of a man other than her husband upon an automobile tour irrespective of the husband’s consent. That is a question between her and the driver of the car. The lack of consent may ultimately end in difficulty between the husband and the wife, but it bears no relation whatever to the

It is alleged in the answer: “That immediately prior to and at the time of the occurrence of the accident referred to in the complaint defendant and said Rose Marie Redwing were engaged upon a common or joint pleasure enterprise and that if in fact this defendant immediately prior to or at the time of the occurrence of the accident referred to in the complaint was negligent, and if in fact at the time of the occurrence of said accident said Rose Marie Redwing was the wife of plaintiff (which admissions are made solely for the purposes of this pleading and without admitting such to be the fact) the said negligence is by law imputable to said Rose Marie Redwing and to plaintiff herein, and bars plaintiff’s recovery herein.” We think this is an immaterial allegation. If it were not so, no person could become a guest passenger of another in his car, when the two were driving in pursuit of a common desire to view scenic beauty—a sunset at sea or some picturesque sylvan or mountain locality. When a man and a woman drive together, unless one accompanies the other upon a business errand of interest only to that other, or perhaps to both—and this exception is excluded by the form of the allegation in the answer—they proceed upon “a common or joint pleasure enterprise”, to adopt the language of that pleading. If the language of the answer could be given any effect whatever it must be taken as an allegation that respondent’s wife was not a guest passenger with appellant and was therefore under the common law entitled to an award of damages from him resulting from his ordinary negligence. But the pleading is not susceptible of such a construction, for it does not allege that respondent’s wife paid to appellant any compensation for her ride, either directly or indirectly, and that is the determining factor in solving the question whether a passenger in a vehicle is a guest of the driver. Moreover, the cause was tried, on the

Appellant contends, under various headings and upon numerous specifications, that the evidence was insufficient to support the verdict of the jury. As the cause may be tried again, and as upon a retrial different evidence may be introduced, we shall not determine the points thus suggested.

Several errors were committed by the trial court, some of which were inconsequential. We shall consider only those which we think, without the others, show the necessity for a reversal of the judgment or which pertain to questions that may arise upon a new trial.

After the accident out of which respondent’s cause of action arises had occurred, appellant accompanied Rose Marie to a hospital. A physician in charge of the institution testified to a conversation with appellant at the time of his arrival there. The witness said, during his recital, that he asked appellant his name and that appellant gave a name which was not Moncravie, although the witness could not remember what the name was. A motion to strike out this portion of the conversation was denied. When appellant was on the witness-stand he was asked if, at the hospital, he gave a name other than Moncravie, and, over objection, he answered that he did. Bach of the rulings referred to in this paragraph was error.

It is contended that the trial court erred in giving the following instruction to the jury: “You are instructed that it is the duty of an operator of an automobile to operate the same at such a rate of speed and in such manner as will enable him to stop it or cheek its speed in the event

The court instructed the jury: “You are instructed that the husband is entitled to the services of his wife. If he loses those services or any part of them through the negligence of another, and the wife is not guilty of contributory negligence, then to the extent of his loss in money he is entitled to be compensated in money. And if you find that she is still suffering from an injury received in this accident, and is reasonably certain to continue to suffer in the future, then, to the extent that he is damaged through the loss of her services, he is entitled to recover for loss in the future.” The giving of this instruction was error. There was nothing in the complaint which shows the semblance of a cause of action for damages for the loss of service of the wife. Respondent sued for the loss of service of a motion picture actress.

The court gave another instruction on the same subject. It is set forth in appellant’s brief immediately following the instruction last above quoted, and its insertion here would serve no useful purpose. This instruction was also erroneous.

The court further instructed the jury as follows: “You are instructed that if you find that the plaintiff is entitled to recover in this action, the amount of the recovery is for you to determine from all the facts in this ease. You cannot, of course, measure in dollars and cents the exact amount he is entitled to, but it is for you to say, in the exercise of sound discretion, from all the facts in this case, after considering and weighing all the facts in this case, what amount of money will reasonably compensate him for the damage and injury he has suffered, not exceeding the sum of one hundred sixty thousand dollars ($160,000.00), as alleged in plaintiff’s complaint. If you find for the plaintiff in this ease, under the instructions given by the court, and that the plaintiff sustained damages as set forth

Appellant complains that several instructions requested by him were refused. We think they were either covered by instructions given or that the points presented by them are not likely to arise upon a new trial.

Judgment reversed.

Stephens, J., and Archbald, J., pro tem., concurred.