Robertson v. Brown

Plaintiff appeals from a judgment after verdict by a jury in favor of defendant Samuelson. The action was for damages on account of the alleged wilful misconduct on the part of the defendant. One night in May, 1935, plaintiff and one Ziebarth were guests of defendant Samuelson as he drove a Pierce Arrow Convertible Phaeton along Ocean Boulevard east of Long Beach. The three had played at cards and lingered over their cups until the approach of midnight when they agreed to make their nocturnal drive in quest of more substantial refreshments.

The contentions made on this appeal are: (1) That the verdict and judgment are contrary to the law and the evidence ; (2) that the court erred in denying the motion for a new trial; (3) that defendant’s counsel was guilty of prejudi

(1) Plaintiff contends that as the car rolled along the said highway at 60 miles per hour, he and Ziebarth both repeatedly admonished defendant to diminish his speed; that on the car’s hitting a jog in the curb at 55th Place, while speeding at 50 miles per hour, the car catapulted 50 feet throwing both guests through the air and on to the earth; that the boulevard at the point of impact passes through a residential area in which the garages open on to said boulevard; that defendant was familiar with said boulevard in said vicinity and considered it dangerous because it was cut up with chuck holes and covered with sand; that the night was clear; visibility good and the pavement dry; that by means of his headlights, defendant could see the road 100 feet ahead and while his vision was unobstructed for 200 feet at said intersection, defendant, according to his own testimony, could have stopped the car within 75 feet if going at 50 miles per hour; that defendant was reckless and wanton in his speed and manner of driving and that said recklessness was the proximate cause of plaintiff’s injuries. Upon the evidence thus summarized, plaintiff urges that defendant’s acts constituted wilful misconduct and that the judgment should be reversed in spite of the verdict.

In view of the rule that implied findings of a jury will not be disturbed if supported by substantial evidence, we have taken notice of the proof presented on behalf of defendant and which presumptively controlled the jury in their deliberations. From the testimony of the defendant and other witnesses, the jury impliedly found that defendant did not fail to slow down at any request of either guest; that he slowed down to 35 miles per hour within the first one-quarter mile and again after going a mile and a half to Livingston Drive ; that east of said drive, the boulevard is a one-way street divided by a right of way, the south half of which is used by east bound traffic only; that no streets intersect the south half; that between Livingston and 55th Place no cars preceded defendant; that west of 55th Place, it is a two-way drive for two or three blocks; that for one mile east of Livingston, there were no houses on the south side of Ocean Boulevard; no traffic could cross the highway; that the pavement was good; that from said Livingston Drive to 55th

From the foregoing summary, it appears that the premise upon which plaintiff bases his claim of wilful misconduct of defendant is the speed at which defendant drove. Excessive speed alone, unattended by circumstances indicating an intention to injure, or a wanton disregard for the safety of the guest, is insufficient to constitute actionable wilful misconduct. The fact that a motorist in a Cord car raced at 73 miles per hour, in a fog, drove on the left side of the highway near a “slow” sign to pass another speeding ear and then returned to the right-hand lane where his Cord collided with a Dodge standing across the highway did not constitute wilful misconduct and judgment for defendant notwithstanding the verdict should have been entered. (McLeod v. Dutton, 13 Cal. App. (2d) 545 [ 57 Pac. (2d) 189 ].) Where a driver proceeded at 60 miles per hour and the road was fifteen feet

It must be shown that “such acts were done under circumstances disclosing knowledge, express or implied, that "an injury to a guest will be the probable result”. (McLeod v. Dutton, supra.) The factors necessary to prove wilful misconduct are (1) that the driver intentionally did something in driving that he should not have done or (2) that he failed to do what he should have done, under the circumstances express or implied “that an injury to a guest will be a probable result”. (Hall v. Mazzei, supra; Turner v. Standard Oil Co., supra.) For an act to be wilful misconduct, it must be an intentional act with a knowledge that serious injury is a probable result, or an intentional act with a wanton and reckless disregard of its possible result. (Hotvard v. Howard, supra.) “Such intent and knowledge of probable injury may not be inferred from the facts in every ease showing an act or omission constituting negligence ...” (Meek v. Fowler, 3 Cal. (2d) 420 at 426 [ 45 Pac. (2d) 194 ].) .Where excessive speed

Therefore, the defendant, though negligent, could not be said to have intended probable injury to his guests. They were congenial friends, enjoying together the harmony of a convivial evening; traveling to a place where they proposed to extend its delights. With no houses to the south; no traffic to reckon with; with a dangerous jog in the curb concealed from view by aeolian deposits; with no lines to guide, no signs or markings to warn of the lurking dangers, the slightest neglect might have resulted in disaster. But while it was a situation that might have required extraordinary care to insure one’s own safety, there was nothing to indicate that defendant knew that injury to his guest would probably result from his thus driving along said approach to said intersection. (Turner v. Standard Oil, supra.) Certainly, a jury’s finding that he intended no such mischief or that he did not proceed wantonly is abundantly justified.

The authorities cited by plaintiff belong to that line of cases where the misconduct was proved by reason of the driver’s knowledge of the highway and of the defective or dangerous condition which caused the collision. (Coogan Productions v. Industrial Acc. Com., 21 Cal. App. (2d) 225 [ 68 Pac. (2d) 750 ]; Fisher v. Zimmerman, 23 Cal. App. (2d) 696 [ 73 Pac. (2d) 1243 ] ; Norton v. Puter, 138 Cal. App. 253 [ 32 Pac. (2d) 172 ] ; Olson v. Gay, 135 Cal. App. 726 [ 27 Pac. (2d) 922 ].) It is, therefore, clearly the law that where the trier of facts is convinced that the driver charged with wilful misconduct has transgressed in no particular except in travelling at a high rate of speed and is free from a wanton disregard of possible injury to his guest, he will not be held liable. His liability must arise out of such behavior as will indicate to the court that the defendant was utterly indifferent to injuries probably to result from conditions which were ignored

(2) Plaintiff introduced the deposition of said Ziebarth tending to prove defendant’s wilful misconduct. Defendant, to impeach said witness, introduced a claim which Ziebarth had filed with the city of Long Beach in which Ziebarth is purported to have averred that defendant drove carefully on said occasion. In support of the motion for a new trial, said Ziebarth’s affidavit was presented. In it he denied the statements contained in said claim so filed, and averred the reckless driving of defendant. Because this affidavit was not controverted, plaintiff contends the denial of his motion was error. But this is not such “newly discovered” evidence as warrants a new trial. The deposition of Ziebarth was read in evidence. He must have told then all he knew of the facts in his deposition when he was confronted by both counsel. His alleged claim was an ex parte act. To hold another trial to have Ziebarth repeat his story to a different jury is a proceeding wholly unwarranted by our practice. Moreover, it cannot be presumed now that the jury was influenced solely by Ziebarth’s testimony or by its alleged impeachment by his said affidavit.

Neither would the end of justice be subserved by having defendant’s purported remarks of friendliness to plaintiff related upon another trial. To justify a new trial on the ground of newly discovered evidence, such evidence, if locked within the secret consciousness of the adversary, must be shown to have been undiscoverable by reason of the perjury of such adversary, and that due diligence of the aggrieved party has otherwise been exercised. The trial court is the tribunal before whom a review of the record or a review of affidavits upon such a motion must be had. His decision is final except where it may appear that there has been an abuse of discretion.

(3) An inquiry by plaintiff’s counsel to prove defendant’s knowledge of the fact that the stretch near 55th Place was within a 25-mile zone was answered after objection and argument by defendant’s counsel. The argument made was within legitimate limits.

Plaintiff’s objection was sustained to defendant’s inquiry whether red reflectors were placed at said corner after the accident. This did no injury to plaintiff. Defendant’s

(4) Plaintiff sets forth some 15 instructions given at the request of defendant which, he says, are “confusing, ambiguous and repetitious”. But practically all of them define wilful misconduct substantially as defined under subdivision (1) of this opinion and are in harmony with the instructions requested by plaintiff. For illustration, defendant’s instruction No. 10 reads as follows: ‘ ‘ Wilful misconduct is not the same thing as gross negligence. Wilful misconduct involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences. The law has excluded in a case where a guest is suing a driver all forms of negligence as a basis for recovery. The law will only permit a recovery where a guest sues a driver where it appears that the thing done by the defendant amounts to misconduct as distinguished from negligence, and the law further states that this misconduct must be wilful. While the word ‘wilful’ implies an intent, the intention referred to relates to the misconduct and not merely to the fact that some act was intentionally done. . . . Wilful misconduct implies at least the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished

This instruction is a correct exposition of the doctrine of wilful misconduct. That doctrine is substantially repeated in defendant’s instructions 5, 6, 7, 8, 9, 12, 13, 18, 19 and 20. Such repetition we must condemn as an unwholesome practice but we cannot say that prejudicial error resulted. The facts of the controversy were fully developed and said doctrine was clearly defined by said instructions as well as by those requested by plaintiff. Instruction No. 16 is a fair admonition to consider defendant’s ignorance of the condition of the highway. No. 14 is a proper instruction that excessive speed would “not of itself” justify a verdict against defendant. The above instructions are supported by the authorities first cited under (1) hereof. No. 15 is a meaningless utterance but harmless as to plaintiff. Defendant’s instruction 11 is a correct statement of the law appertaining to the rights of a guest.

The judgment is affirmed.

Wood, J., and MeComb, J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 29, 1940.