BERNICE PATTON, Plaintiff and Appellant, v. CLINTON LA BREE et al., Defendants and Respondents, 60 Cal. 2d 606

GIBSON, C. J. The complaint in this action alleges that plaintiff took her automobile to defendant Friendly Rambler, Inc., to have it serviced and that she rode in it as a “passenger” while it was being serviced and was being driven by defendant La Bree, an employee of Friendly Rambler, Inc. It is further alleged that as a proximate result of defendants’ negligence in operating the automobile it collided with another ear and plaintiff was injured. The action was dismissed following the sustaining of a general demurrer to the complaint, and plaintiff has appealed.

Section 17158 of the Vehicle Code provides: “No person riding in or occupying a vehicle owned by him and driven by another person with his permission and 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 the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the owner or guest during the ride, unless the plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or willful misconduct of the driver. ’ ’ The words of the

section that we have italicized were added by amendment in 1961. Prior to the amendment it had been held that under ordinary circumstances an owner riding in his own car, while it was being driven by another, was not a “guest” and did not come within the limitations on recovery prescribed by the section. (Ahlgren v. Ahlgren (1960) 185 Cal.App.2d 216, 217 et seq. [8 Cal.Rptr. 218]; Ahlgren v. Ahlgren (1957) 152 Cal.App.2d 723, 725 [313 P.2d 88].) As amended, the

section includes within its scope an owner-occupant of a vehicle driven by another with his permission. Plaintiff contends that the word “owner” should be construed so as to include only an owner who has not given compensation for the ride and that she gave compensation for the trip since it was primarily for a business purpose from which defendants were to derive a substantial economic benefit. We do not agree with plaintiff’s construction of the amendment. The language does not show an intention to except an owner who gave compensation for the ride.

As pointed out in the Legislative Counsel’s Digest of the measure, Assembly Bill No. 2704, 1961 Regular Session, the amendment “Includes within that group of persons who must establish intoxication or willful misconduct of the driver any person riding in or occupying a vehicle owned by him and driven by another person with his permission.” It follows that the

section is applicable here. Plaintiff contends that the

section as so construed is unconstitutional in that it makes an arbitrary distinction between owners giving compensation for a ride and other persons, not owners, who give such compensation. There is, of course, a presumption in favor of constitutionality, and the invalidity of a legislative act must be clear before it can be declared unconstitutional. (Los Angeles Met. Transit Authority v. Public Utilities Com., 59 Cal.2d 863, 867 [31 Cal.Rptr. 463, 382 P.2d 583]; Lundberg v.

County of Alameda, 46 Cal.2d 644, 652 [298 P.2d 1].) Wide discretion is vested in the Legislature in making a classification, and its decision as to what is a sufficient distinction to warrant the classification will be upheld by the courts unless it is “palpably arbitrary and beyond rational doubt erroneous” and no set of facts reasonably can be conceived that would sustain it. (Bilyeu v. State Employees’ Retirement System, 58 Cal.2d 618, 623 [24 Cal.Rptr. 562, 375 P.2d 442]; Johnson v.

Superior Court, 50 Cal.2d 693, 699 [329 P.2d 5].) It cannot be said that the classification made by the Legislature in the 1961 amendment to

section 17158 is arbitrary or that no set of facts reasonably can be conceived that would sustain it. The relationship between a driver and the owner of the car who is a passenger is obviously different from that existing between a driver and a passenger who is not an owner. In making the distinction between owner-passengers and nonowner-passengers, the Legislature may have taken into consideration the fact that an owner generally has the right to direct and control the driver, but a non-owner ordinarily does not have that right. The judgment is affirmed.

Traynor, J., Schauer, J., McComb, J., Tobriner, J., and Peek, J., concurred. It is the practice to use the designations “passenger” and “guest” for the purpose of distinguishing a person who has given compensation within the meaning of the Vehicle Code from one carried gratuitously. (Kruzie v. Sanders (1943) 23 Cal.2d 237, 241 [143 P.2d 704].)