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I think it’s time we discussed Leatherbury v. Favel. We’ve never previously discussed Leatherbury v. Favel, and this seems an appropriate occasion: I have a deadline to meet and you obviously have time on your hands or you wouldn’t be reading my stuff. So let’s do it. Leatherbury v. Favel, (1951) 106 Cal.App.2d 112, is a great case. Unsung, but great. It’s not Brown v. Board great. It’s not even Palsgraf or International Shoe great. It didn’t change the law, much less history. But for the 35 years since I ran across it, while cite-checking for Kathryn Werdegar at CEB in Berkeley, it has never failed to brighten my day. Leatherbury v. Favel is as close to allegory as the law gets, and it should make you feel better about your career. If you can feel bad about your professional life after reading this case, your ingratitude for the gifts you’ve been given exceeds my ability to provide therapy. The facts are simple, the exposition clear, the resolution terse. Herein, the entire opinion (in well-deserved italics) with my exegesis following each paragraph in … in … well, in whatever you call the opposite of italics: Plaintiff was driving his automobile west on Van Owen Boulevard in the San Fernando Valley. He was on his own right hand side of the street, as far over as he could get, against a dirt embankment thrown up by a ditch digger. OK, it’s 1950. People are digging ditches with shovels instead of trenching machines. Harry S Truman is president of the United States, Elvis Aaron Presley is 15 years old, a 5’6″ machine shop worker in Memphis, Tenn., and Ozzie Nelson is just a bandleader. “God’s in his heaven — all’s right with the world.” [FOOTNOTE 1] Defendant was driving a pickup truck in the other direction, drifting from side to side of the street. Defendant ran into the side of plaintiff’s car, but he didn’t stop; he just kept on going. Because it’s 1950, there is a certain amazement which infuses this paragraph. The guy didn’t stop! He just kept going! How rude! Plaintiff got out of his car and into another one going east on Van Owen. After chasing defendant for a mile or so they caught him, and headed him into the curb. The driver of the pursuing car left to call the police; plaintiff went to defendant’s pickup to get his license number. Talk about your good Samaritan! This passerby not only stops for a stranger flagging him down, he agrees to help him, pursues the pickup truck, forces it off the road and runs to call the police! Either Leatherbury is the world’s greatest — and fastest — salesman, or people were just a lot more willing to take on a personal crime fight in the ’50s than they are today. The door of the cab on the pickup was open. Plaintiff put his foot on the attenuated running board, or door sill, of the truck. Plaintiff had a pad of paper on his knee and a pencil in his right hand. So the pickup has been forced to the side of the road, and Leatherbury has approached to get license and insurance information from the miscreant driver, while his new best friend calls the police. I love the fact that cars and trucks were still new enough that the terminology was unclear. Is it a door sill? Is it some kind of small running board (“attenuated”)? How do we describe it? Today I deal with questions like whether “diss” is a word and how to describe the use of an MP3 player. People don’t realize just how tough this Court of Appeal gig is. Forget the law; just figuring out the words is tough for some of us. Then, without warning, defendant gunned his truck and started it with a jerk. The open door struck plaintiff. To save himself further injury he grabbed the side of the cab and swung himself into the rear of the truck. Now it starts getting good. This poor sonofagun has been side-swiped by a hit-and-run driver and now clobbered by the car door as the driver flees the scene. I have this picture of Leatherbury’s pad and pencil flying through the air as he frantically grabs hold of the door of the truck and clambers into the bed of the pickup. I’ve seen this in movies dozens of times, but I had no idea anyone but a stunt man could do it. Plaintiff beat on the top of the cab to stop defendant, but he only went faster. Without stopping for a boulevard sign, defendant rounded a corner at high speed and ran full tilt into a telephone pole. Plaintiff was thrown out of the truck, was seriously injured and was in Veterans’ Hospital for two months. Just a ton of great pictures here. Kudos to the late Justice Louis C. Drapeau for showing us Leatherbury in the bed of the pickup, pounding on the roof as the pickup careens off down the street. And I love “ran full tilt into a telephone pole.” I can just see this truck flying around the corner on two wheels, sliding across the street like a pig on ice, and then t-boning into the telephone pole. Leatherbury is catapulted over the cab like a bat out of hell and spends two months in the hospital while all the king’s horses and all the king’s men try to put him together again. The arresting officer tested defendant for sobriety, and testified that in his opinion defendant was under the influence of liquor. A witness who saw defendant’s driving, and observed him after the accident testified to the same opinion. Defendant admitted he had been drinking. Well, of course he admitted he’d been drinking. Given your choice of being a pathetic drunk or a homicidal maniac, which would you choose? Why did I never get these cases when I was a lawyer? Favel admits he was drinking, the cop says he was blitzed, there’s an independent witness who says he was wasted and the only thing worse than his driving is his judgment. Leatherbury’s attorney must have thought he’d died and gone to heaven. Defendant appeals from the judgment rendered against him. He argues that plaintiff comes within the category ‘nor any other person’ in Vehicle Code, section 403, and, therefore, as a guest in the pickup may not recover; also that the judgment against the co-owner of the truck is without support in the record. OK, this is where the case becomes my instant mood enhancer. It’s 1950. California law still entertains the quaint notion that someone who’s a guest in a car should not be suing his host for injuries resulting from that relationship. Seems discourteous and ungrateful, somehow. So Vehicle Code �403 provides, “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 injury results from intoxication or willful misconduct. And that was Favel’s defense. The argument was that when Leatherbury was knocked into the bed of the pickup and shanghaied, he became a “guest” and could not sue. Can you imagine what it was like to argue for Favel on appeal?[ [FOOTNOTE 2]] Some poor shlub actually had to stand up in front of three sentient human beings, people whose body temperatures and IQ’s, when added together produced a three-digit number, and argue that Leatherbury was a guest in Favel’s pickup and therefore couldn’t recover. Can you imagine? I mean, Leatherbury was in the hospital for two months. TWO MONTHS. His damages must have looked like the gross national product of Spain. Favel was driving drunk, fled the scene of an accident, then effectively kidnapped and mangled the plaintiff. And this guy had to stand up in court and say, “Yes, Your Honor, that’s what I said: ‘guest.’ Section 403 of the Vehicle Code clearly states … .” He’s lucky the appellate panel didn’t take him out behind the courthouse and beat him like a rented mule. Instead, they raised judicial restraint to an art form. They said: In the circumstances of this case section 403 of the Vehicle Code has no application. (Kastel v. Stieber, 215 Cal.3d [8 P.2d 474].) Section 402(a) of the Vehicle Code [the negligence statute] fixes the liability of the co-owner. The evidence supports the findings, and the findings support the judgment in every respect. The judgment is affirmed. Respondent’s motion to have appellant’s counsel publicly flogged is denied (but just barely).[ [FOOTNOTE 3]] BE GLAD So why do I love this case so much? Because we’ve all been in the position of appellant’s counsel in this case. We don’t always get to represent the good guy; sometimes we have to represent Percy Favel.[ FN4] It sucks, but it comes with the territory.[ [FOOTNOTE 5]] All lawyers have to do it in one form or another. Even judges. People are always surprised to hear judges talk about having to do things they don’t like doing. But our job description doesn’t involve making the law, just following it. So in 10 years on the trial bench and seven here, I’ve had to make a lot of rulings and sign a number of opinions I didn’t like. My Superior Court staff used to say they could always tell when I was going to have to suppress evidence or send someone to state prison, because I came in grouchy on those days. And I can remember a couple of JNOV and new trial motions that made me cranky for months. That’s why Leatherbury v. Favel has always meant so much to me. Because I realized that somewhere out there was a lawyer who had to argue Percy Favel’s appeal. When things got bad, when I didn’t like my job or didn’t like a result or had to do something I really hated, I was always able to prop myself up with the knowledge that no matter what I had to do that day, I didn’t have to stand up in front of a Court of Appeal and argue the appellant’s case in Leatherbury v. Favel. And no matter what you have to do today — no matter how obdurate your judge, how unreasonable your managing partner, how infuriating your client, how impossible your issue — neither do you. Contributing writer William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana. He writes this column to get it out of his system. You can read more columns like this in “A Criminal Waste of Time,” a book from The Recorder featuring more than 30 of the best columns from Justice Bedsworth. Order by calling (800) 587-9288 or by going to www.lawcatalog.com/bedsworth. ::::FOOTNOTES:::: FN1 Browning would have felt right at home in the San Fernando Valley in 1950. FN2 Actually, if I’d been Leatherbury’s trial counsel, the last thing Favel’s attorney would have seen before awakening in the hospital would have been me, wild-eyed, diving across the table with my hands reaching for his throat, screaming, “Guest!? Guest!? He almost killed my guy twice, broke most of his bones, his nose and his pencil, put him in the hospital for the entire time “This Old House” was Number One on Your Hit Parade, and you wanna argue my guy was a guest!? I’ll show you ‘guest’ . . .” FN3 Okay, this part wasn’t actually in the opinion. But it should have been. FN4 Yeah, Percy. FN5 Although, if you don’t like the worst case on your calendar better than you like Percy Favel’s, you really oughta just close up shop and consider selling aluminum siding.

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