Humphreys v. S.F. Area Council

GIBSON, C. J. This action was brought for damages arising out of the death of plaintiff’s 15 year old son, Robert — 438 — Humphreys, Jr. The boy was attending an encampment of boy scouts conducted by the defendant San Francisco Area Council, Boy Scouts of America, a charitable corporation, at Camp Lilienthal, located about two miles from Fair-fax in Marin County. At the time of the accident he was riding in a truck driven by another boy scout, Francis Kuckein, who was employed by defendant council and at the time was operating the truck in the scope of such employment. The court, trying the case without a jury, concluded that although the driver of the truck was negligent, Robert “was a guest . . . and not a passenger,’’ and accordingly rendered judgment for the defendants. Since it is not claimed that the death of the boy resulted from the intoxication or wilful misconduct of the driver, the judgment must be affirmed if the court correctly concluded Robert accepted the ride as a guest without giving compensation therefor. (Veh. Code, §403.) Boy scouts attending Camp Lilienthal who supplied and cooked their own food were furnished lodging and other camp facilities without charge. Those scouts who received their meals from the camp paid seven dollars weekly. It was the practice to select some of the more mature scouts to act as “staff members’’ who were classified as “seniors” and “juniors,” also called “leaders.” The members of the senior staff were young men between 19 and 22 years of age who acted as vocational directors, health and safety counselors or in similar capacities. They received a small wage in addition to board and lodging. The junior staff members were younger scouts, selected by the camp director from among boys who possessed particular qualifications and whom he was grooming for senior staff duties. The juniors acted as assistants to the seniors and performed various other duties about the camp. They received only board and lodging for their work. Robert was a junior staff member and he acted as bugler and operated the camp canteen where candy, ice-cream and soda water were sold. Privileges not enjoyed by other boys were granted to staff members as a group. They were given a watermelon or ice-cream “feed” at staff meetings held on Sunday nights and were privileged to have affairs in the lodge to the exclusion of other boys. They were allowed to remain up later at night than others and were permitted, when going to and — 439 — from Fairfax, to ride on the camp “pick-up truck” which was used to carry baggage and supplies. Seven staff members were called as witnesses by the defendants and testified to facts concerning the accident. In response to questions asked on direct examination, three seniors testified they received as compensation board and room plus a small salary. Four juniors testified that the only compensation they received for services was room and board. One junior member questioned on cross-examination as to whether the practice of allowing staff members to ride in the truck was the result of a “blanket permission” given by the camp director or if it was necessary “to go to him in each instance and ask him for specific permission” stated, “I have always asked him personally.” Concerning the purposes for which the truck was maintained, the camp director, Dickieson, testified as follows: “Q. What was that Plymouth truck used for in the year 1939 ? A. It was used principally for bringing baggage from the gas station where the boys would leave it when they came to camp, so that they wouldn’t have to pack their baggage up; to drive to Fairfax and pick up mail and provisions the boys doing their own cooking would want bought, and that was all. Q. They picked up the baggage of the boys coming into camp and took the baggage for the boys leaving?. A, Yes.” “Q. Was the main purpose of the pickup truck to give the staff members transportation, or was the main purpose something other than that? A. You mean the reason for us having that? Q. Yes. A. No. The reason for the pickup truck was to— pardon—to move—pick up the boys’ baggage down town, to pick up the supplies—commissary supplies—in the city; weekends when I would go in. No; the truck was not used—I mean, we did not have the truck for the purpose of carrying the leaders at all.” With reference to the practice or policy of permitting the staff members transportation on the truck, Mr. Dickieson testified, “there was no particular arrangement at all . . . if the staff members wanted to go down to town once in a while, why, we had no objection to them getting a lift down . . . there was nothing said about it. I mean, we didn’t make any provision to that effect but they were at least, at any rate, permitted to go down. It was a common practice . . . that they did go back and forth in the truck. . . . Boys were permitted to ride on the pickup truck ... on regular trips only ... a special trip would not be — 440 — made to give any boy a ride except in case of an emergency. ” Dickieson testified further that at the time Robert was selected as a junior staff member there was no “agreement, discussion, or talk of any kind about his being entitled, as a part of his compensation, to ride up and down the hill on this truck. ” It is conceded that on the day of the accident Robert was on a purely personal mission. Plaintiff states in his opening brief “that the purpose of [Robert’s] trip was not connected with his employment and was for his own benefit. ’' Plaintiff also concedes that the privilege of riding in the truck “is not a matter of right in the sense that the privileges thus enjoyed are part of the contract of employment and are enforceable as such. ...” There is no evidence that at the time the staff members were selected anything was said about permission being given them to ride on the truck on its regular trips to and from Fairfax, nor is there any direct evidence that such privilege served to induce scouts to seek or retain staff membership or was considered a part of the compensation for services performed by them. The court found “that . , . Robert Humphreys, Jr., and Francis Kuckein were members of the Boys Scouts of America and were, and each of them was employed by the San Francisco Area Council, Inc., Boy Scouts op America, a corporation, at the said ‘Camp Lilienthal.’ in the capacity of Junior Staff Members; that the duties of the said Robert Humphreys, Jr., by virtue of the said employment consisted of operating the canteen and assisting in the supervision and training of members of Boy Scouts of America, and the duties of said Francis Kuckein by virtue thereof consisted, in part, of operating the said Plymouth truck automobile between the said camp and the said city of Fairfax; . . . that the services performed by the said Robert Humphreys, Jr., were rendered in consideration of his receiving from said defendant, as a matter of contractual right, board and lodgings only at said Camp Lilienthal; that it is true that all junior staff members of said camp, including the said Robert Humphreys, Jr., and all of whom performed services for said defendant, were privileged to receive, and actually did receive transportation to and from Camp Lilienthal in the said Plymouth truck automobile which was maintained, in part, for said purpose, and that all other members of the said Camp Lilienthal not — 441 — performing services of some sort, and therefore not having the status of Junior Staff Members, did not have said privilege and actually did not receive said transportation; that said privilege was revocable at any time at the will of said defendants or either of them.” It was further found: “that at said time the said Robert Humphreys, Jr., was riding in said truck from Camp Lilienthal to the city of Fairfax on a mission personal to himself; that . . . the said Robert Humphreys, Jr., was riding in said truck by virtue of the privilege afforded him by the defendant San Francisco Area Council, Inc., Boy Scouts op America . . . that . . . while acting in the scope of his said employment. . . the said Francis Kuckein did then and there drive the said Plymouth truck automobile in a negligent and careless manner and by reason thereof the automobile did leave said highway, overturn and fall with great force and violence into a ravine adjacent thereto.” The court concluded: “that at said time Robert Humphreys, Jr., was a guest in said Plymouth truck automobile and not a passenger therein by virtue of his employment by the said San Francisco Area Council, Inc., Boy Scouts op America, a corporation, or otherwise . . . that plaintiff is not entitled to judgment against defendants or either of them.” Plaintiff does not contend that the quoted findings are not supported by the evidence, but argues that the conclusion that the deceased was a “guest” and not a “passenger” is erroneous under the facts found. The question thus presented is whether as a matter of law the record compels a contrary conclusion. Section 403 of the Vehicle Code provides that “No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of such vehicle or against any other person legally liable for the conduct of such driver on account of personal injury to or the death of such guest during such ride, unless the plaintiff in any such action establishes that such injury or death proximately resulted from the intoxication or wilful misconduct of said driver.” The designations “passenger” and “guest” have been adopted for the purpose of distinguishing a person who has given compensation within the meaning of the statute from one carried gratuitously. (Cf. — 442 — McCann v. Hoffman, 9 Cal.2d 279, 282 [70 P.2d 909]; Whitechat v. Guyette, 19 Cal.2d 428, 430 [122 P.2d 47].) Although benefits or considerations other than cash or its equivalent may be “compensation,” there is no compensation if the transportation is intended and received as a mere gratuity—a question for the trier of fact upon proper evidence. (See Restatement, Torts §490; Darling v. Dreamland B. & U. Co., 44 Cal.App.2d 253, 256-258 [112 P.2d 338]; Carey v. City of Oakland, 44 Cal.App.2d 503, 508-510 [112 P.2d 714]; cf. McCann v. Hoffman, supra; Whitechat v. Guyette, supra; Druzanich v. Criley, 19 Cal.2d 439 [122 P.2d 53]; Jenkins v. National Paint & Varnish Co., 17 Cal.App.2d 161 [61 P.2d 780].) A benefit would be received if the transportation was within the terms of the employment, or- part of the agreed consideration for the Work, or was directed by the employer during working hours, or was furnished to facilitate or speed a task the employee was to perform (see (1938) 26 Cal.L.Rev. 251, 254-255; (1938) 51 Harv.L.Rev. 545; Knutson v. Lurie, 217 Iowa 192 [251 N.W. 147]; Hall v. Smith, 283 Mass. 166 [185 N.E. 850]; Kruy v. Smith, 108 Conn. 628 [144 A. 304]; Russell v. Parlee, 115 Conn. 687 [163 A. 404]; Monison v. McCoy, 266 Mich. 693 [256 N.W. 49]; White v. Gregory, 161 Va. 414 [170 S.E. 739]; cf. McGrath v. Parson, (Mass.), 45 N.E.2d 384); but none of these factors is found in the present case, for it is conceded that the trip “was not connected with [Robert’s] employment” and constituted no part of his contractual compensation. Plaintiff cites California Cas. Indem. Exch. v. Ind. Acc. Com., 21 Cal.2d 461 [132 P.2d 815], in which this court affirmed an award of compensation under the Workmen’s Compensation Act for an injury suffered by an employee while riding home in the employer’s automobile where the transportation was regularly furnished to employees. In that case, however, there was testimony that the employee, when hired, understood that transportation to and from work would be provided by the employer, and the court held that the facts were sufficient to support an inference there was an implied agreement to furnish such transportation. Plaintiff argues that it is reasonable to infer that the continued practice or custom of permitting staff members (a privilege restricted to them alone) to ride in the truck to and from Fairfax was known to all potential staff members — 443 — and served as an inducement for them to accept employment and to keep them satisfied in their employment and that this, as part of a business relationship, constituted “giving compensation” within the meaning of section 403, supra. The trial court, however, refused to so infer, and the question is not whether it is reasonable to draw the inference but whether the court was compelled to do so as a matter of law because of the existence of the practice or custom here involved. It is true, of course, that in some situations the existence of a practice or custom of furnishing transportation to employees might permit or even require the drawing of an inference that all rides were given not as a mere gratuity but with the purpose of inducing employees to accept or retain employment. Under the facts of the present case, however, we cannot hold as a matter of law that the privilege extended to junior staff members to ride on the truck was not a gratuity but was an inducement to the employment or was otherwise a part of a business relationship. In this connection we must keep in mind that, as stipulated at the trial, the defendant council is a charitable corporation “not conducted for any profit whatsoever” and that in none of its operations “is it in anywise akin to a business enterprise.” This organization is engaged in the spiritual, physical and mental development of the youth of America. While attending this encampment Robert was not just an employee. He was a boy scout enjoying a vacation paid for in part by services performed and receiving at the same time training as a member of this organization. And no doubt junior staff members, like certain other scouts, were to some extent recipients of charitable benefits. The charitable functions of defendant council are considered, of course, only in connection with the nature of the relationship existing between it and the scouts attending Camp Lilienthal as one of the circumstances tending to show that the privileges accorded staff members might reasonably be regarded as gratuities rather than something bought and paid for. These privileges or preferences, as indicated by their nature, appear to have been small courtesies that went with rank. They included permission to have staff affairs in the lodge and the liberty to remain up later at night than other boys, as well as leave to ride on the truck. The privileges were not related to duties connected with employment, and although only staff members had jobs, the — 444 — character and nature of their work was varied while the privileges went to the staff as a group. These advantages might more properly be considered a part of scout training and a reward for faithful application of the principles they had been taught in their boy scout work rather than a part of a business relationship. In support of the contention that the trial court was bound as a matter of law to infer from the practice of permitting staff members or leaders to ride on the truck that the custom served as an inducement to Robert to accept or retain employment with defendant council, appellant calls attention to the finding of the court, in referring to such practice, that the truck “was maintained in part for said purpose.” Although the uncontradicted evidence is to the contrary, the finding is supported by an admission in the pleadings. The fact, however, that the truck was maintained in part for the purpose of permitting staff members to ride thereon to and from camp did not require the court to conclude as a matter of law that compensation was given for the ride. The refusal of the court to draw the inference that the custom served as an inducement for Robert to accept or retain employment is a complete answer to appellant’s argument. And regardless of whether or not the trier of fact reasonably could have inferred that the privilege was intended to or did foster a business relationship, we cannot hold that this must be true as a matter of law. Under the evidence the court was justified in concluding that the preference accorded staff members in permitting them to ride on the truck to and from the camp was a gratuity and that Robert Humphreys, Jr., was a guest “without giving compensation for such ride” within the meaning of section 403 supra. This conclusion forecloses recovery by plaintiff and makes unnecessary any discussion of other issues presented. The judgment is affirmed. Shenk, J., Curtis, J., Edmonds, J., Traynor, J., and Schauer, J., concurred.