Van Fleet v. Heyler

The plaintiffs were guests of defendant in his automobile, on a trip from Beverly Hills to a fishing location on the Owens River. While defendant was

It is not contended by plaintiffs that the evidence does not support the verdict, their whole claim of error being directed at the instructions to the jury. On the other hand, defendant contends that the evidence does not show wilful misconduct on his part, and is thus insufficient to support a verdict against him, if one had been found, and that hence any error regarding instructions cannot be regarded as prejudicial and affords no grounds for reversal. If defendant’s premise be conceded, the conclusion which he draws is undoubtedly correct. (Young v. Vallejo etc. Co., (1927) 202 Cal. 638 , 641 [ 262 Pac. 327 ].) Under section 403 of the Vehicle Code, either wilful misconduct or intoxication of a driver is necessary to render him liable for injuries to a guest, and intoxication is not alleged or shown here. We therefore examine the evidence to determine whether it would support a verdict in favor of plaintiffs on the issue of wilful misconduct, before considering their contentions; and in passing upon this question we must, of course, take the view of the evidence most favorable to plaintiffs, resolving all conflicts and all conflicting inferences in their favor, so far as is reasonably possible.

The plaintiff, William Clinton Van Fleet, is the 12-year-old son of the plaintiff, Dr. Harry Van Fleet, and the term “plaintiff” will be used hereinafter to designate Dr. Van Fleet only, except as otherwise indicated. The parties to the action left Beverly Hills at 4:15 p. m. on October 7, 1938, accompanied by Dr. Van Fleet’s wife and by the defendant’s wife and 13-year-old son. Their route led them through Palmdale, Mojave, Red Rock Canyon, Lone Pine and Independence to the scene of the accident, which occurred at or about 9 p. m., at a point 8 miles north of Independence. A short distance north of Palmdale defendant drove his car at ,a speed of 100 miles per hour for a short distance. The plaintiff and Mrs. Van Fleet remonstrated at this and defendant reduced his speed to between 70 and 80 miles per hour. Night

From all these facts and circumstances we think the jury, under proper instructions, could reasonably have concluded that the defendant was guilty of wilful misconduct proximately causing the accident. They might easily have believed that defendant was “ ‘knowingly flirting with danger’ without necessity compelling him to take the chance”—a sort of conduct which has several times been held to be wilful misconduct. (Raw lins v. Lory, (1941) 44 Cal. App. (2d) 20 , 24 [ 111 P. (2d) 973 ] ; Francesconi v. Belluomini, (1938) 28 Cal. App. (2d) 701 , 705 [ 83 P. (2d) 298 ] ; Chandler v. Quinlan, (1938) 25 Cal. App. (2d) 646 , 648 [ 78 P. (2d) 235 ] ; Berryman v. Quinlan, (1938) 29 Cal. App. (2d) 608 , 610 [ 85 P. (2d) 202 ] ; Parsons v. Fuller, (1937) 8 Cal. (2d) 463 , 468 [ 66 P. (2d) 430 ].)

Defendant contends, however, that the only circumstance to be considered in support of this conclusion is his speed, and that speed alone does not amount to wilful misconduct. Our views on this point are well expressed in an opinion by Judge Bishop of the Appellate Department of the Superior Court of Los Angeles County, in People v. Nowell, (1941) 45 Cal. App. (2d) (Supp.) 811 [ 114 P. (2d) 81 ]. There the question for decision was whether the defendant was shown to be guilty of “reckless driving,” as defined in section 505 of the Vehicle Code. The court held such driving to be the same thing as the wilful misconduct mentioned in section 403 of the Vehicle Code, which we now have under consideration, “so far as they are concerned with the state of mind of the driver whose conduct is in question,” and extensively reviewed the authorities on wilful misconduct, reaching conclusions which are satisfactory to us. We quote from that decision as follows (pp. 813 and 814) : “Of necessity, when referring to the speed of an automobile, there is involved the highway on which it travels, with its width, surface and the presence or lack of traffic upon it. There is involved, too, the factor of visibility; was the car driven before or after dark? When considered in relation to these matters mere speed, without other acts, may demonstrate wilful misconduct or that the

In this ease speed was not “alone.” The accident occurred at night, while the moon was hidden by clouds. The pavement was only 20 feet wide and had soft shoulders and a wavy, sometimes rough, surface. While the scene of the accident was in a remote, comparatively uninhabited part of the country, roads in such regions are not necessarily untraveled. We may take judicial notice of the facts that this particular road is the main highway from Los Angeles to Reno and other parts of Nevada, that it leads to many fishing, hunting and camping resorts, that the fishing season was still open at the time of the trip, and that a considerable amount of traffic passes over the road. Just a few minutes before the accident defendant had had a definite warning that the road was not entirely empty, and that the other occupants did not all carry lights, when he came suddenly on the unlighted chuck wagon and had to make an abrupt turn to avoid it. Before him were the lights of the pack station as a further indication that the vicinity was inhabited and persons or objects might be on the road. In spite of all this he accelerated his speed to 82 or more miles per hour soon after passing

Defendant further contends that there is no evidence “of a frame of mind of the defendant of a character to constitute ‘wilful misconduct.’ ” There are conflicting statements in the decisions which undertake to define “wilful misconduct.” But on consideration of the cases on the subject, and reconciling them as far as possible, we find them to divide “wilful misconduct” into two distinct lines of action, either of which will render a driver liable to his guest for its results, as follows: first, “the intentional doing of something with a knowledge that serious injury is a probable (as distinguished from a possible) result”; and, second, “the intentional doing of an act with a wanton and reckless disregard of its possible result.” Both of these statements are quoted from Howard v. Howard, (1933) 132 Cal. App. 124 , 129 [ 22 P. (2d) 279 ] (emphasis by the court there), and have been approved in the many later cases reviewed in People v. Nowell, 45 Cal. App. (2d) (Supp.), pp. 815 and 816, [ 114 P. (2d) 81 ].

The first alternative stated in Howard v. Howard, supra, doing an act with knowledge of its probable results, etc., is qualified by the cases to this extent, that the knowledge may be either express or implied. (Turner v. Standard Oil Co., (1933) 134 Cal. App. 622 , 626 [ 25 P. (2d) 988 ], This case is approved on this point in many later cases, including Meek v. Fowler, (1935) 3 Cal. (2d) 420 , 425 [ 45 P. (2d) 194 ] ; Weber v. Pinyan, (1937) 9 Cal. (2d) 226 , 233 [ 70 P. (2d) 183 , 112 A.L.R. 407 ]; Robertson v. Brown, (1940) 37 Cal. App. (2d) 189 , 194 [ 99 P. (2d) 288 ] ; Stacey v. Hayes, (1939) 31 Cal. App. (2d) 422 , 426 [ 88 P. (2d) 165 ] ; Francesconi v. Belluomini, (1938) 28 Cal. App. (2d) 701 , 703 [ 83 P. (2d) 298 ] ; Giménez v. Rissen, (1936) 12 Cal. App. (2d) 152 , 157 [ 55 P. (2d) 292 ] ; Hagglund v. Nelson, (1937) 23 Cal. App. (2d) 348 , 352 [ 73 P. (2d) 265 ] ; Haas v. Jones, (1938) 29 Cal. App. (2d) 650 , 652 [ 85 P. (2d) 579 ] ; and

Our attention has been particularly called to the following quotation from Porter v. Hofman, (1938) ( 12 Cal. (2d) 445 , 448 [ 85 P. (2d) 447 ]), a misconduct case: “Before liability arises there must be shown actual knowledge, or its equivalent, on the part of the defendant of peril to be apprehended coupled with a conscious failure to act to the end of averting injury.” The latter part of this

On the question of intent, defendant contends, quoting from Walker v. Bacon, (1933) 132 Cal. App. 625 , 627 [ 23 P. (2d) 520 ], that “Wilful misconduct refers to intentional acts, that is, acts designed to bring about the result involved in the suit,” and argues further that because his own family was in the car he could not have had such an intent and was therefore not guilty of wilful misconduct. While the presence of a driver’s family or friends in the car with him is a fact to be considered in determining his state of mind, it is by no means conclusive on the subject. In many of the cases where drivers have been held guilty of wilful misconduct, family or friends, or both, have been among their guests. The statement quoted by defendant from Walker v. Bacon, supra, appears in the opinion of only one judge, not concurred in by the other two, who joined in the decision for other reasons, and is not a correct statement of the law. On the contrary, it

Plaintiff contends that many of the instructions on the subject of wilful misconduct are erroneous. We find that several of them are not entirely consistent with the foregoing discussion of that term, but since a new trial must be had, at which the instructions can be made to conform to the law on this point as above stated, it is not necessary to discuss in detail all those complained of. One of them, given at defendant’s request, reads as follows: “There can be no wilful misconduct unless the defendant himself realized that there was a probability, as distinguished from a mere possibility, of injury to the occupants of his car from his conduct. Even proof of such probability of injury will not alone establish such realization on his part. There must be a conscious disregard of probable consequences. You may, however, consider all of the surrounding circumstances in ascertaining such realization.” This instruction was erroneous in at least two respects. By making it a condition of liability that defendant himself “realized” the probable consequences of his conduct, it withdrew from the consideration of the jury “implied knowledge” on defendant’s part, that is, the possible inference that a man of ordinary prudence and intelligence would have realized those probable consequences, even though defendant himself did not, and thus ran counter to the first branch of the definition of wilful misconduct, as above stated; and by excluding from consideration the possibility of injury to a guest, and defendant’s reaction thereto, it contravened the second branch of that definition.

Another instruction, given at defendant’s request, reads: “The speed at which a vehicle travels upon a highway, considered as an isolated fact and simply in terms of so many miles an hour, is not proof even of negligence. Under modern conditions with improved hard-surfaced highways and high speed automobiles, traveling at a high rate of speed is not

At defendant’s request the court gave the jury an instruction on the duty of a person confronted with sudden peril, as follows: “You are further instructed that if a driver of a vehicle is confronted with a set of circumstances which call for quick action, without time for deliberation, and he uses his best judgment and follows the course of action which seems to him best suited to prevent a collision, he cannot even be found to be negligent, nor guilty of wilful misconduct, simply because he did not do what some other person might have done if placed in the same position and confronted with the same set of circumstances.

As a statement of the sudden peril rule this instruction is erroneous. It excuses the defendant if he used his best judgment and followed the course of action which seemed to him best suited to prevent a collision. One who is subject to this rule is required to act as a reasonably prudent person would act under similar circumstances. (19 Cal. Jur. 598; Mortensen v. Fairbanks, (1934) 1 Cal. (2d) 489 , 492 [ 35 P. (2d) 1030 ].) The instruction sets up quite a different standard. It also fails, as a statement of this rule, in declaring that the rule must be applied even though defendant was negligent in a manner contributing to the peril, It is an essential part of the rule that one claiming its benefit be without such negligence. (19 Cal. Jur. 598; Mortensen v. Fairbanks, supra.)

The latter deviation from the rule probably resulted from an effort to apply it to a case of wilful misconduct. This lights up the fundamental error of the instruction, which is that the rule itself is one applying to negligence cases, and has nothing to do with wilful misconduct, which is something more than negligence, however gross. The plaintiffs do not contend here and, as far as we can discover, did not contend at the trial, and there is nothing in the evidence to suggest, that the defendant’s actions after he was confronted by the emergency of the sudden appearance of the pack train, amounted to wilful misconduct. But had any such question been raised, it could not have been answered by application of the sudden peril rule, and any instruction upon it would have been unnecessary, confusing and improper.

The vice of this instruction is aggravated by the fact that its second sentence, appearing at the beginning of its second paragraph, is in effect a formula instruction. It directs the jury that if defendant was confronted by a sudden peril and

In this connection the court also instructed the jury, at defendant’s request: “On the issue of wilful misconduct, if you find that the accident occurred while defendant was endeavoring to avoid a collision, such circumstances must be considered in defendant’s favor. ” We have some difficulty in determining the precise signification here of the last six words. The jury might have understood them as a direction to return a verdict in defendant’s favor; and if so regarded they are manifestly erroneous and prejudicial. For the reasons already stated this instruction should not have been given, whatever the meaning of the last part of it.

We also find error in the following instruction, given at defendant’s request: “Even if you find that this accident was proximately caused by wilful misconduct of defendant, plaintiffs are not entitled to recover if you find that they knew, or reasonably should have known of the alleged misconduct and had reasonable opportunity to have protected themselves from injury by leaving the car or by preventing defendant either from operating the car at all or in the manner alleged, and yet failed to avail themselves of such opportunity.” The effect of this is that the plaintiffs must have left the car if they had reasonable opportunity to do so. In view of the undisputed fact that such an opportunity had presented itself to them when they stopped for dinner at Lone Pine, which they left half an hour or less before the accident, and the further fact, testified to by Dr. Van Fleet, that he had complained of defendant’s driving before that time, the jury may have concluded, in the light of this instruction, that plaintiffs could not recover because they continued to ride, with defendant driving, beyond Lone Pine. The true rule on this point is not that a guest must, where he knows the driver’s conduct is improper, leave the ear merely if he has reasonable opportunity to do so, but that he must leave it, a reasonable opportunity being afforded, if a person in the exercise of ordinary

On the points covered by some of the instructions which we hold erroneous, other instructions correctly stating the law were given at plaintiffs’ request, and defendant claims that by reason thereof the errors, even if we find them to be such, need not lead to a reversal. But this is not a case where all the instructions, considered and construed as a whole, can be resolved into a correct and harmonious statement of the law. There is here direct and positive conflict between the differing sets of instructions. In such a case the correct instructions do not cure the error of those which are wrong, for it is impossible to ascertain which were followed by the jury. (Westberg v. Willde, (1939) 14 Cal. (2d) 360 , 371 [ 94 P. (2d) 590 ].) Nor is the situation altered by the fact, to which defendant calls our attention, that the court further instructed the jury to do what is also our duty, viz: to consider all the instructions together as a whole and harmonize them if possible. Neither the jury nor this court can harmonize positively conflicting instructions based on fundamentally different theories of the law.

The judgment is reversed.

Schauer, P. J., and Wood (Parker), J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied July 2,1942.