Panopulos v. Maderis , 47 Cal. 2d 337 ( 1956 )

CARTER, J.

I dissent.

In deciding that Vehicle Code, section 403, the California “guest law,” is applicable to a situation where the person who had been driving the automobile was outside of the automobile when the accident causing the injury occurred, the majority has concluded that the term “driver,” as used in the code section, comprehends something more than one actually in control of a vehicle. In support of this conclusion, the majority relies upon the case of Frankenstein v. House, 41 Cal.App.2d 813 [107 P.2d 624], and upon an interpretation of the term “driver” in the light of other sections of the Vehicle Code. It is submitted that an examination of section 403, its background and cases interpreting it and other so-called “guest statutes” demonstrates that this conclusion is erroneous.

At common law, a guest had a right of action against a driver for injuries received as a result of the ordinary negligence of the driver (Callet v. Alioto, 210 Cal. 65, 69 [290 P. 438]). With the growth of automobile usage and the resultant increase in accidents and litigation arising therefrom, California, along with many other states, enacted a statute (now § 403) preventing recovery for ordinary negligence by a guest who has accepted the hospitality of the driver. (See Kruzie v. Sanders, 23 Cal.2d 237, 242 [143 P.2d 704].) Because the section deprives the plaintiff of his common law action against his driver-host, it has been held repeatedly that the section must be strictly construed. In Prager v. Isreal, 15 Cal.2d 89, 93 [98 P.2d 729], we stated that: “It is well settled in this and other states that the so-called ‘guest laws’ are in derogation of the common law and must be construed strictly. (See McCann v. Hoffman, 9 Cal.2d 279, 282 [70 P.2d 909]; Callet v. Alioto, 210 Cal. 65 [290 P. 438] ; Rocha v. Hulen, 6 Cal.App.2d 245, 254 [44 P.2d 478] ; Hunter v. Baldwin, 268 Mich. 106 [255 N.W. 431].) Furthermore, as stated in Rocha v. Hulen, supra, ‘The common law right of having redress for injuries wrongfully inflicted, being lessened by such statutes, necessitates strict construction, and also that cases he not held within the provisions of such statutes unless it clearly appears that it should he so determined.’ (Emphasis ours.) ”

In this light, then, the question here is whether the term “driver” is to be interpreted as denoting one who is actually operating or in a position to operate a motor vehicle, or, as the majority has concluded, as meaning anyone who is capable of operating a vehicle regardless of where he may be at the time in question. The pertinent portions of section 403 read: “No person who as a guest accepts a ride . . . has any right of action . . . against the driver of such vehicle ... on account of personal injury to . . . such guest during such ride. ...” According to the plain import of these words, it cannot be said that the defendant, after leaving the automobile unattended, was “the driver of such vehicle.” Yet the majority has adopted a contrary definition, pointing to Vehicle Code, sections 69 (defining “driver” as one “who drives or is in actual physical control of a vehicle”), 482, 483, 484 (imposing a duty under criminal sanctions upon a driver involved in an accident to furnish aid and information) and 595 (prohibiting the leaving of unattended vehicles without locking the brakes and stopping the motor but not using the term “driver”). These sections are of doubtful assistance here in view of the strict construction to which section 403 is subject. Moreover, an examination of the sections does not lead unerringly to the conclusion that the term “driver” was intended to include one not actually driving or in a position to drive the vehicle.

In one sense, of course, anyone who has learned to operate a motor vehicle might be called a “driver.” By the same token, anyone to whom the hospitality of another is extended is a “guest” of the other. However, this broad meaning of the term “guest” is not employed in determining the application of section 403, for as this court recently held in Boyd v. Cress, 46 Cal.2d 164 [293 P.2d 37], one is not a “guest” within the purview of the section unless he is in or upon the vehicle at the time of the accident. That the converse is true, that is, that one is not a “driver” within the purview of the section unless he is operating the vehicle, is indicated in the case of Puckett v. Pailthorpe, 207 Iowa 613 [223 N.W. 254]. Interpreting a statute similar to section 403, the Iowa Supreme Court said: “Manifestly, Section 5026-bl, supra, contemplates a person on such journey in a motor vehicle, driven or operated by some one [emphasis added].... Entrance must be made into an automobile then in the operation of a driver, so that a journey can be taken. There can be no trip without a drwer. [Emphasis added.] Thus a person in such motor car without a driver operating it is not a passenger, within the meaning of the section under consideration; for, in the absence of the necessary operator, there can be no journey, and consequently no riding. Without the driver, the journey, and the riding, there is no passenger, in the case at bar. If then, under the provisions of the statute in question, there is no driver, there can be no passenger.” (Emphasis added.)

It is clear that the court interpreted “driver” as meaning one actually operating the automobile. By analogy, this interpretation is in accord with the California eases which have defined “guest” as one actually in the vehicle for the reason that otherwise there is no “ride.” In the Puckett case, we see that there is another requisite for a “ride,” or a “trip” as that ease called it, namely, a “driver.” Furthermore, the Frankenstein case is doubtful authority for the position adopted by the majority here for the court in that ease relied upon two cases (Nemoitin v. Berger, 111 Conn. 88 [149 A. 233], and Head v. Morton, 302 Mass. 273 [19 N.E.2d 22]) which do not support the conclusion there reached. Both of those cases involved situations in which the driver was in his driving position behind the steering wheel, which was not the ease in Frankenstein v. House or here. Moreover, in the Head case, which was decided in Massachusetts which has no guest statute but which restricts a guest’s recovery under its common law (Ruel v. Langelier, 299 Mass. 240, 243 [12 N.E.2d 735]), the guest was not yet in the vehicle when the mishap occurred, a situation in which section 403 would clearly not apply in California (Boyd v. Cress, supra.)

The reasoning advanced in the majority opinion that the 1935 amendment of section 403 precludes the necessity of the driver being at the wheel is not borne out by the opinion of this court in the Boyd case. There, a unanimous court, speaking through Mr. Justice Shenk, said (46 Cal.2d at p. 167) : “The defendant construes the 1935 amendment as extending the guest statute to injuries occurring during or incidental to the ‘journey,’ notwithstanding that the plaintiff is entirely outside of the automobile when the injury is sustained. But this construction would involve the reading of new and different language into the statute.” If the 1935 amendment leaves intact the requirement that the guest be in the vehicle, it likewise leaves intact the requirement enunciated in Puckett v. Pailthorpe, supra, that there be a driver in control of the vehicle. To hold otherwise is to read “new and different language into the statute.”

Clearly then, as section 403, in restricting a guest’s cause of action arising “during such ride,” requires that the guest be in the vehicle, consistent interpretation of the section demands that there also be a driver in the vehicle, for without a rider and a driver, there can be no “ride.” For this reason, I would reverse the judgment.

Appellants’ petition for a rehearing was denied December 19, 1956. Carter, J., was of the opinion that the petition should be granted.