Humphreys

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…

I dissent. In my opinion the facts of this case as found by the trial court do not bring the deceased, Robert Humphreys, Jr., within the purview of the guest *445 statute (Veh. Code, sec. 403) and plaintiff is therefore entitled to recover damages for his wrongful death which was admittedly caused as the result of the negligence of an employee of the defendant corporation.

The trial court found that deceased was an employee of defendant corporation, and as such employee was privileged to receive transportation to and from Camp Lilienthal in the Plymouth truck which was maintained, in part, for said purpose; that on the 2nd day of July, 1939, while deceased was riding in said Plymouth truck pursuant to such privilege an accident happened as the result of the negligence of the driver of the truck who was an employee of the defendant corporation, which resulted in the death of said deceased. The conclusion of law which must necessarily be deduced from these facts is that the deceased was a passenger in said Plymouth truck and was therefore not subject to the provisions of the so-called guest statute.

The majority opinion appears to be based in part upon the theory that because the…